               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 44860

STATE OF IDAHO,                                )
                                               )    Filed: October 17, 2018
       Plaintiff-Respondent,                   )
                                               )    Karel A. Lehrman, Clerk
v.                                             )
                                               )    THIS IS AN UNPUBLISHED
JESUS ESTABAN CASTRO-ANGULO,                   )    OPINION AND SHALL NOT
aka LUIS CARLOS QUEZADA,                       )    BE CITED AS AUTHORITY
                                               )
       Defendant-Appellant.                    )
                                               )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Deborah A. Bail, District Judge.

       Judgment of conviction, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Jason C. Pintler, Deputy
       Appellate Public Defender, Boise, for appellant. Jason C. Pintler argued.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
                 ________________________________________________

GRATTON, Chief Judge
       Jesus Estaban Castro-Angulo appeals from the judgment of conviction and sentence on
two counts of trafficking in methamphetamine. We affirm.
                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       A narcotics detective from the Ada County Sheriff’s Office, acting in his undercover
capacity, arranged to buy methamphetamine from Castro-Angulo.            While undercover, the
detective purchased one-quarter pound of methamphetamine from Castro-Angulo in Twin Falls.
Several months later, the detective arranged for another methamphetamine purchase with Castro-
Angulo. As part of this second transaction, the detective agreed to purchase two pounds of
methamphetamine from Castro-Angulo, and Castro-Angulo agreed to provide additional
methamphetamine to the undercover detective on credit.            Castro-Angulo drove to the

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prearranged location in Ada County where law enforcement arrested him. Law enforcement
seized two pounds of methamphetamine from the car.
       Following the drug investigation, a grand jury indicted Castro-Angulo for trafficking
twenty-eight (28) grams or more of methamphetamine, Idaho Code § 37-2732B(a)(4)(A), and for
trafficking 400 grams or more of methamphetamine, I.C. § 37-2732B(a)(4)(C). Castro-Angulo’s
attorney requested unredacted discovery, which the prosecution provided.         Castro-Angulo’s
counsel subsequently requested redacted discovery. In response, the State filed a motion for a
protective order allowing Castro-Angulo to access and inspect the materials “only at a specific
time, place and manner and . . . prohibiting duplication and dissemination of police reports and
materials that have already been disclosed/provided” as well as future disclosures. Following a
hearing, the court issued an order of protection.
       Prior to trial, a motion in limine was filed to exclude evidence of the street value of the
methamphetamine. The court denied the motion. At trial, the undercover detective testified that
if he were an actual drug dealer and if he had divided the two and one-quarter pounds of
methamphetamine into smaller units (e.g., ounces, eighths of an ounce, or sixteenths of an
ounce) and then sold the smaller units, the methamphetamine would have sold on the street for
more than he had arranged to pay Castro-Angulo for it. Ultimately, the jury found Castro-
Angulo guilty on both counts of trafficking.
       Prior to sentencing, the prosecutor submitted a proposed order for restitution and
judgment. The prosecutor sought restitution for the Ada County Prosecutor’s Office in separate
amounts of $2,440 and $2,660. The prosecutor also sought $7,076.31 in restitution for law
enforcement agencies. At sentencing, defense counsel objected only to the $2,660 portion of the
restitution. The court imposed concurrent twenty-year sentences with ten years determinate for
each trafficking count and awarded $5,100 in restitution to the Ada Country Prosecutor’s Office
and $2,300 to law enforcement agencies. Castro-Angulo timely appeals.
                                                    II.
                                           ANALYSIS
A.     Discovery
       Castro-Angulo asserts the district court abused its discretion by preventing him from
keeping copies of his discovery. The State, however, asserts that the district court did not abuse
its discretion. We agree.

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       Control of discovery is within the trial court’s discretion.   Therefore, the proper standard
for reviewing a trial court’s grant of a protective order is abuse of discretion. See State v. Joy,
155 Idaho 1, 12, 304 P.3d 276, 287 (2013) (stating that the language of Idaho Criminal Rule
17(b) suggests a district court’s decision to grant or deny a motion to quash a subpoena is
discretionary and thus is reviewed for abuse of discretion on appeal); State v. Harbaugh, 123
Idaho 835, 837, 853 P.2d 580, 582 (1993) (stating that the use of the word “may” in I.C.R. 33
indicates a court’s discretion in applying the rule and thus alleged errors are reviewed for an
abuse of discretion on appeal). When a trial court’s discretionary decision is reviewed on appeal,
the appellate court conducts a multi-tiered inquiry to determine whether the lower court correctly
perceived the issue as one of discretion, acted within the boundaries of such discretion and
consistently with any legal standards applicable to the specific choices before it, and reached its
decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333
(1989). It is undisputed that the court correctly perceived the issue as one of discretion. At issue
is whether the court acted consistently with applicable legal standards and whether it reached its
decision by an exercise of reason.
       Castro-Angulo argues the State failed to provide any information, let alone make a
sufficient showing as required by I.C.R. 16(l), that any person would be subjected to economic,
physical, or other harm or coercion if he had been allowed to keep copies of his discovery.
According to Castro-Angulo, instead of requiring the State to meet its burden, the district court
decided that he should not be able to keep a copy of his discovery because of his Mexican
nationality and his inability to speak English. Therefore, Castro-Angulo contends the court
abused its discretion because it acted inconsistently with the applicable legal standards and did
not reach its decision through an exercise of reason.
       The State argues that the district court did not abuse its discretion by ordering Castro-
Angulo to not personally possess, copy, or disseminate the discovery material. According to the
State, the court’s order only imposes a restriction on post-disclosure use of the police reports to
prevent possible harm caused by dissemination of the police reports outside the legitimate needs
of the defense. Thus, the State argues the court properly weighed the State’s concerns about the
possible ramifications of Castro-Angulo personally possessing the discovery materials against
the possible benefits Castro-Angulo would receive from having his own copies of the materials.
The State also argues that the evidence presented was sufficient for the court to conclude that

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Castro-Angulo was associated with a Mexican drug cartel or gang and had the motive and ability
to harm those named in the reports, specifically the undercover detective.
       The district court did not abuse its discretion by granting the State’s motion for a
protective order. At the time, I.C.R. 16(l) stated:
       Upon a sufficient showing, after notice and hearing, the court may at any time
       order that the discovery or inspection be denied, restricted or deferred, or make
       such other order as is appropriate, including an order denying a request for
       disclosure of names and addresses of witnesses or others who may be subjected to
       economic, physical or other harm or coercion.
I.C.R. 16(l) (2016).    The State made a sufficient showing for the court to restrict Castro-
Angulo’s access to the discovery materials. The State was clear that it sought permission to
provide copies of the discovery materials only to defense counsel as well as the restrictions on
Castro-Angulo’s access to the discovery “[i]n order to attempt to protect the undercover officer.”
For context and to show that discovery misuse does occur, the State referred the court to other
instances.   The State expressed that its concerns stemmed from the significant quantity of
methamphetamine that Castro-Angulo had access to and lost upon seizure by law enforcement as
well as Castro-Angulo’s own statements connecting him to Sinaloa, Mexico, and a Mexican
gang. The State’s showing was sufficient for the district court to conclude that Castro-Angulo
had a motive and means to retaliate against persons named in the reports. Additionally, the
record reveals that the court balanced the State’s concerns “with [the] absolute need [of] the
defendant to be able to review [the discovery materials] fully and meaningfully” which the court
clarified “means it is going to have to be done with the assistance of the interpreter.” The court
was clear that although it thought there was less need for Castro-Angulo to have a copy of the
discovery when it was in a language that he is not familiar with, the court was not granting the
protective order on the basis of Castro-Angulo’s ability to comprehend or speak the English
language. Accordingly, the district court did not abuse its discretion by granting the State’s
motion and issuing the order of protection.
       Castro-Angulo also argues the State cannot show that the verdict rendered in this case
was not attributable to the district court precluding Castro-Angulo from keeping a copy of his
discovery, and thus the State is unable to show the error is harmless beyond a reasonable doubt.
However, the State argues that even if the protective order was granted in error, such error was
harmless. According to the State, Castro-Angulo was not prejudiced by the alleged error because
the State provided full disclosure of all police reports in discovery, Castro-Angulo’s trial counsel
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acknowledged that he and Castro-Angulo were going “to be able to review [the discovery]
fully,” and the evidence of Castro-Angulo’s guilt is overwhelming.
         Error is not reversible unless it is prejudicial. State v. Stoddard, 105 Idaho 169, 171, 667
P.2d 272, 274 (Ct. App. 1983).            “A defendant appealing from an objected-to, non-
constitutionally-based error shall have the duty to establish that such an error occurred, at which
point the State shall have the burden of demonstrating that the error is harmless beyond a
reasonable doubt.” State v. Perry, 150 Idaho 209, 222, 245 P.3d 961, 974 (2010).
         From our review of the record we are convinced beyond a reasonable doubt that any error
in the district court’s order of protection was harmless and did not contribute to the jury’s
verdict.    The State provided full discovery to defense counsel, and defense counsel
acknowledged that he and Castro-Angulo would be able to fully review the discovery materials
before trial with the assistance of an interpreter. The restriction imposed was merely a time,
place, and manner restriction on Castro-Angulo’s inspection of the discovery materials. The
restriction did not prevent Castro-Angulo from fully and meaningfully reviewing the discovery,
and Castro-Angulo does not assert on appeal that he was unable to do so.                  The court
appropriately noted that Castro-Angulo’s limited English meant that the best way to guarantee
access for appropriate defense purposes was with counsel and an interpreter, rather than release
of the documents to Castro-Angulo. Additionally, the evidence establishing Castro-Angulo’s
guilt was substantial, and included: recorded communications between the undercover detective
and Castro-Angulo; the seized two and one-quarter pounds of methamphetamine; photographs of
the delivery of methamphetamine by Castro-Angulo to the detective in Twin Falls; and
photographs of the arrest of Castro-Angulo in possession of the two pounds of methamphetamine
he had agreed to sell the undercover detective. Thus, any error in restricting Castro-Angulo’s
inspection of the discovery materials was harmless.
B.       Relevant Evidence
         Castro-Angulo asserts the district court erred by allowing the State to present evidence of
the street value of the seized methamphetamine because it was not relevant to any issue for the
jury’s consideration. The State asserts that the value of the methamphetamine was relevant. We
agree.
         Evidence that is relevant to a material and disputed issue concerning the crime charged is
generally admissible. State v. Stevens, 146 Idaho 139, 143, 191 P.3d 217, 221 (2008). Evidence

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is relevant if it has any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the evidence.
Idaho Rule of Evidence 401; Stevens, 146 Idaho at 143, 191 P.3d at 221. Whether a fact is of
consequence or material is determined by its relationship to the legal theories presented by the
parties. State v. Johnson, 148 Idaho 664, 671, 227 P.3d 918, 925 (2010). We review questions
of relevance de novo. State v. Raudebaugh, 124 Idaho 758, 764, 864 P.2d 596, 602 (1993); State
v. Aguilar, 154 Idaho 201, 203, 296 P.3d 407, 409 (Ct. App. 2012).
         In the motion in limine, Castro-Angulo argued that the undercover detective should not
be allowed to testify about the possible street value of the methamphetamine. The district court
denied the motion, stating that the testimony was both “highly relevant” and “very probative.”
Castro-Angulo argues that the street value of methamphetamine that he possessed is not a fact of
consequence for determination of his guilt because the drug’s street value does not make it more
or less probable that he knowingly possessed 400 grams or more of methamphetamine as
charged in the indictment. Additionally, Castro-Angulo argues the State is unable to meet its
burden of showing that the evidence erroneously admitted was harmless beyond a reasonable
doubt.
         The State argues that evidence of the value of the methamphetamine before or after
Castro-Angulo’s link in the distribution chain is relevant because such evidence has a tendency
to prove a fact of consequence in the case.            The State argues the street value of the
methamphetamine has a tendency to prove that the price the undercover detective negotiated
with Castro-Angulo was a wholesale price, and that the distribution chain was intended by
Castro-Angulo to continue with the “dealer” (a.k.a. the undercover detective). According to the
State, this testimony also educates the jury on how methamphetamine is trafficked and
establishes the value of the methamphetamine to the traffickers. The State also argues that even
if this evidence is irrelevant, the admission of it was harmless beyond a reasonable doubt because
evidence of Castro-Angulo’s guilt was overwhelming and knowledge of the street level price of
the methamphetamine in user amounts and sold at a mark-up does not affect the verdict.
         The district court properly permitted the undercover detective to testify at trial concerning
the street value of the methamphetamine seized from Castro-Angulo as part of the investigation.
Evidence of the price of the methamphetamine being trafficked is inextricably associated with
the quantity of methamphetamine being trafficked. The detective’s testimony as it relates to both

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the wholesale and street values of the methamphetamine has a tendency to make it more
probable than it would be without such evidence that Castro-Angulo knew the quantity of the
methamphetamine he possessed, that he had negotiated a purchase price with the undercover
detective based on the quantity, and that he intended the chain of distribution to continue beyond
his sale of the methamphetamine to the undercover detective. Thus, the detective’s testimony in
this regard is relevant to the ultimate factual determination of whether Castro-Angulo trafficked
in methamphetamine.
       Moreover, from our review of the record we are convinced beyond a reasonable doubt
that even if admitting this testimony was error, the district court’s admission of evidence related
to the street value of the seized methamphetamine did not contribute to the jury’s verdict. As
previously discussed, the evidence establishing Castro-Angulo’s guilt was extensive. Thus, any
error with respect to the relevance of the seized methamphetamine’s street value was harmless.
C.     Restitution
       Castro-Angulo asserts the district court abused its discretion by ordering him to pay
restitution to the Ada County Prosecutor’s Office because that office is not a crime victim. The
State asserts that Castro-Angulo’s challenge to the restitution award is not preserved for
appellate review. We agree.
       Idaho Code § 19-5304(2) authorizes a sentencing court to order a defendant to pay
restitution for economic loss to the victim of a crime.       The decision of whether to order
restitution, and in what amount, is within the discretion of a trial court, guided by consideration
of the factors set forth in I.C. § 19-5304(7) and by the policy favoring full compensation to crime
victims who suffer economic loss. State v. Richmond, 137 Idaho 35, 37, 43 P.3d 794, 796 (Ct.
App. 2002); State v. Bybee, 115 Idaho 541, 543, 768 P.2d 804, 806 (Ct. App. 1989). Thus, we
will not overturn an order of restitution unless an abuse of discretion is shown. Richmond, 137
Idaho at 37, 43 P.3d at 796. When a trial court’s discretionary decision is reviewed on appeal,
the appellate court conducts a multi-tiered inquiry to determine whether the lower court correctly
perceived the issue as one of discretion, acted within the boundaries of such discretion and
consistently with any legal standards applicable to the specific choices before it, and reached its
decision by an exercise of reason. Hedger, 115 Idaho at 600, 768 P.2d at 1333.
       Castro-Angulo argues that the district court acted outside the legal boundaries governing
restitution to crime victims. According to Castro-Angulo, the Ada County Prosecutor’s Office

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does not meet the definition of a crime victim pursuant to I.C. § 19-5304(1)(e), and therefore the
district court had no power to award restitution. The State argues that Castro-Angulo has raised
the argument that the prosecutor’s office is not a crime victim eligible to seek restitution for the
first time on appeal, and thus this argument is not preserved for appellate review. The State also
argues the claim was not raised as a claim of fundamental error.
       Castro-Angulo did not preserve this crime victim argument for appeal. Generally, issues
not raised below may not be considered for the first time on appeal. State v. Fodge, 121 Idaho
192, 195, 824 P.2d 123, 126 (1992). Indeed, “[i]ssues not raised below will not be considered by
this court on appeal, and the parties will be held to the theory upon which the case was presented
to the lower court.” State v. Garcia-Rodriguez, 162 Idaho 271, 275, 396 P.3d 700, 704 (2017).
Castro-Angulo did not argue before the district court that the Ada Country Prosecutor’s Office
was not a crime victim and thus not eligible to receive the restitution award. To the contrary,
Castro-Angulo’s counsel conceded that it was “probably reasonable” for the court to order the
$2,440 portion of the restitution, and even stated, “I would ask the court to only order the $2440
but not the additional” amount. Castro-Angulo’s sole objection below concerned the $2,660 that
the State was requesting for the cost of an English-language transcription of Spanish-language
interviews. Castro-Angulo based his objection below on the fact that the State did not play the
transcriptions to the jury as part of the trial. Castro-Angulo’s failure to raise the crime victim
theory before the district court is fatal to that argument on appeal. 1
       Alternatively, the court’s restitution order was proper under I.C. § 37-2732(k) and
therefore the award of restitution did not prejudice Castro-Angulo. Castro-Angulo did not
specify below that he was objecting to the award of restitution based on the statute under which
restitution was ordered. “Restitution may be ordered by the district court under I.C. § 37-
2732(k) once a defendant is convicted of, or pleads guilty to, a crime under Title 37, Chapter 27



1
        Castro-Angulo asserts that arguments may “evolve” from how presented in the trial court
to presentation on appeal, citing Ada County Highway District v. Brooke View, Inc., 162 Idaho
138, 142 n.2, 395 P.3d 357, 361 n.2 (2017). Castro-Angulo’s reading of that case is far too
broad. Castro-Angulo objected below only as to transcripts not used at trial. On appeal, the
argument is that the prosecutor’s office is not a “victim” entitled to any award, even though,
below, Castro-Angulo conceded that the prosecutor’s office was entitled to some restitution. The
argument on appeal cannot be said to be the same argument, just evolved. The argument
advanced on appeal is a completely different argument than raised below.
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of the Idaho Code.” State v. Gomez, 153 Idaho 253, 257-58, 281 P.3d 90, 94-95 (2012). Idaho
Code § 37-2732(k) provides in part:
               Upon conviction of a felony or misdemeanor violation under this
       chapter . . . the court may order restitution for costs incurred by law enforcement
       agencies in investigating the violation. Law enforcement agencies shall include,
       but not be limited to, the Idaho state police, county and city law enforcement
       agencies, the office of the attorney general and county and city prosecuting
       attorney offices. Costs shall include, but not be limited to, those incurred for the
       purchase of evidence, travel and per diem for law enforcement officers and
       witnesses throughout the course of the investigation, hearings and trials, and any
       other investigative or prosecution expenses actually incurred, including regular
       salaries of employees.
(Emphasis added.) Castro-Angulo was convicted of two felonies under Title 37, Chapter 27 of
the Idaho Code, and thus the district court was permitted to order restitution to both the law
enforcement and the Ada County Prosecuting Attorney’s Office pursuant I.C. § 37-2732(k).
Accordingly, we affirm the district court’s order awarding restitution.
                                                 III.
                                          CONCLUSION
       The district court did not abuse its discretion by granting the State’s motion and issuing
the order of protection restricting Castro-Angulo’s inspection of the discovery materials. The
district court did not err by allowing the State to present evidence of the street value of the seized
methamphetamine. Castro-Angulo did not preserve the argument that the district court abused
its discretion by ordering him to pay restitution to the Ada County Prosecutor’s Office because
that office is not a crime victim for appeal. Therefore, we affirm the judgment of conviction and
sentence.
       Judge GUTIERREZ and Judge HUSKEY CONCUR.




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