Filed 4/7/14 P. v. Saucedo CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F064722
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. VCF257429)
                   v.

EDWIN MANRIQUEZ SAUCEDO,                                                                 OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tulare County. Brett R.
Alldredge, Judge.
         Patricia L. Watkins, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Charles A. French and John G.
McLean, Deputy Attorneys General, for Plaintiff and Respondent.

         *   Before Kane, Acting P.J., Poochigian, J. and LaPorte, J.†
         †
         Judge of the Superior Court of Kings County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
                                            -ooOoo-
       Edwin Saucedo appeals from a conviction under Health and Safety Code section
11378 for possession of methamphetamine for sale. He claims the judgment must be
reversed because he was denied the opportunity to present evidence of third party
culpability. Alternatively, he contends the excluded evidence had strong impeachment
value and should have been admitted for that purpose. We find no error and affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND
       On March 5, 2009, Porterville police officers executed a search warrant at a house
occupied by Saucedo and another man named Alejandro Sanchez. The search yielded
three bags of methamphetamine, three digital scales containing powdery residue,
packaging material, and approximately $500 in cash. Saucedo and Sanchez were both
arrested on suspicion of narcotics possession and sales, but Sanchez was eventually
released without charges.
       On November 16, 2011, the Tulare County District Attorney filed an amended
information charging Saucedo with possession of methamphetamine for sale. Saucedo
was also accused of having suffered two prior felony convictions for possession of a
controlled substance. (Health & Saf. Code, § 11377, subd. (a); Pen. Code, § 1203, subd.
(e)(4).) The matter was tried before a jury in February 2012.
Motion in Limine re: Prior Convictions of Alejandro Sanchez
       Prior to trial, defense counsel signaled her intention to introduce evidence of
Alejandro Sanchez’s prior arrests and convictions for methamphetamine-related offenses.
The convictions arose from incidents which occurred in May 2008 and July 2009. The
prosecution filed a motion in limine to exclude any information concerning Sanchez’s
criminal background, noting the evidence would have no impeachment value since he
was not scheduled to testify in the case.
       Defense counsel opposed the motion, arguing the prior convictions could be used
as evidence of third party culpability. Saucedo’s attorney further claimed the evidence

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would serve to “undermine[] the reliability of the police department’s work in this case.”
The latter argument focused on the fact that Sanchez was not questioned following his
arrest, purportedly because the investigating officer could not converse with him in
Spanish. The defense believed this was a pretextual excuse for the Porterville Police
Department’s alleged negligence in releasing a suspect who was known to be “a drug
dealer in methamphetamine.”
       The trial court granted the prosecution’s motion. It found Sanchez’s criminal
convictions before and after the subject incident constituted impermissible propensity
evidence under Evidence Code section 1101. The court also expressed concern regarding
the likelihood that jurors would be confused, distracted, and/or misled by evidence of
Sanchez’s prior arrests and criminal history.
Prosecution Evidence
       Police arrested Saucedo during a search of a residence located on East River
Avenue in the City of Porterville. The two-bedroom home had been under surveillance
as part of an ongoing narcotics investigation. There was no evidence to confirm Saucedo
lived in the house, but he had been seen exiting and entering the home one day prior to
his arrest. Police also found photocopies of a permanent resident card and a Social
Security card in one of the bedrooms, both in the name of “Edwin Manriquez Saucedo.”
       Detective Chris Contreras testified as the investigating officer. He and seven or
eight additional officers and detectives from the Porterville Police Department
participated in the execution of a search warrant at the target residence. The search team
found Saucedo and Sanchez together in a small room which Detective Contreras referred
to as the northeast bedroom. Police frisked Saucedo and found a digital gram scale in the
front pocket of his pants. Two additional scales were found in close proximity to both
suspects. All three scales contained traces of a white powdery residue.
       A search of the northeast bedroom uncovered three plastic “bindles” of
methamphetamine weighing 1.29, 1.43, and 1.62 grams, respectively. Two of the bindles

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were concealed inside of an eyeglasses case that was lying on the floor. The third bindle
was located at the bottom of a trash can underneath a box of plastic sandwich bags.
Approximately $500 in cash was found elsewhere in the house.
       Detective Stephanie McElroy testified as a narcotics expert. In her opinion, the
totality of the evidence was indicative of drug possession for sale rather than personal
use. She based her opinion on several factors, including the presence of packaging
materials, i.e., plastic sandwich bags, in the bedroom. In her experience, it is uncommon
for a person who is not involved in drug sales to keep a box of sandwich bags in the
bedroom of a home. Other supporting factors included the separate packaging of similar
quantities of methamphetamine, the amount of cash found at the scene, and the presence
of digital scales with residue on them. The residue was not laboratory tested, but two of
the investigating officers believed the substance was methamphetamine based on their
training and experience in identifying illegal drugs.
Defense Evidence
       Saucedo’s trial counsel attempted to portray him as a mere buyer and user of
methamphetamine, and suggested the actual drug dealer was Sanchez or some other third
party. This strategy relied on the lack of evidence to show Saucedo’s dominion and
control over the premises. With the exception of the photocopied identification cards
bearing his name, there was no proof of Saucedo’s connection to the house. Utility bills
found inside the northeast bedroom were addressed to a “Maria Ruiz.”1
       Police photographs taken during the search revealed a number of items which
could have potentially pointed to other suspects, but were never seized. These items

       1 The defense successfully excluded evidence of a relationship between Saucedo
and Maria Ruiz, who was allegedly pregnant with Saucedo’s child at the time of his
arrest. The jury was also unaware that the search warrant for the house had been issued
as a result of a “controlled buy” arranged by police with a confidential informant who
reported that a man named “Edwin” had sold him methamphetamine at that location.



                                             4.
included a wallet, a California identification card, a sheet of address labels, a traffic
citation, car keys, computers, and various pieces of mail. The photographs also showed a
third individual handcuffed and seated next to Saucedo and Sanchez inside of the
residence. The unidentified man had apparently arrived at the house while police were
conducting their search, was briefly detained, and then released without arrest.
       Detective Contreras acknowledged his failure to question Sanchez about the
contraband. This was allegedly due to a language barrier, though no effort was made to
interrogate him with the assistance of an interpreter. During the defense case-in-chief, a
detective named Brett McGowen testified that he knew Sanchez from prior arrests.
Detective McGowen helped secure the perimeter of the residence during the search, but
could not recall if he actually saw Sanchez while he was there. Pursuant to its in limine
ruling, the trial court struck the testimony about Sanchez’s prior arrests and instructed the
jury to disregard the information.
       As for the digital scale in Saucedo’s pants pocket, defense counsel theorized that
he had the device with him to confirm the weight of a drug purchase for personal use.
The prosecution’s narcotics expert acknowledged that the factors supporting her opinions
could also be consistent with drug possession for personal use rather than sales.
Verdict and Sentencing
       The jury returned a guilty verdict. After the verdict was rendered, Saucedo
admitted his prior convictions as alleged in the amended information. He subsequently
moved for a new trial based on the court’s exclusion of evidence regarding Sanchez’s
criminal history. The motion was denied.
       Applying Penal Code section 1170, subdivision (h), the trial court sentenced
Saucedo to county jail for a term of three years, with the final year to be served on
supervised probation. Various fines and fees were also imposed. This timely appeal
followed.



                                              5.
                                        DISCUSSION
       Saucedo’s arguments on appeal mirror those advanced by his trial counsel
regarding the exclusion of evidence of Alejandro Sanchez’s criminal history. The
evidence is characterized as being probative of third party culpability and having
independent value for impeachment purposes. Saucedo also claims the exclusion of this
evidence deprived him of his constitutional right to present a defense and confront
witnesses. We address each contention in turn.
       A criminal defendant may present evidence of third party culpability if the
evidence is capable of raising a reasonable doubt as to his or her own guilt. (People v.
Abilez (2007) 41 Cal.4th 472, 517 (Abilez).) The evidence must directly or
circumstantially link a third person to the crime at issue and its use is subject to all
applicable restrictions under the Evidence Code. (Id. at pp. 502, 517.) A trial court’s
ruling on the admissibility of third party culpability evidence is reviewed for abuse of
discretion. (People v. Elliott (2012) 53 Cal.4th 535, 581 (Elliott); People v. Brady (2010)
50 Cal.4th 547, 558 (Brady).)
       In People v. Hall (1986) 41 Cal.3d 826 (Hall), the California Supreme Court
adopted a two-part test for the assessment of proposed third party culpability evidence.
First, the trial court must determine whether the evidence is admissible, focusing on its
ability to link a third party to the actual perpetration of the crime and to raise a reasonable
doubt about the defendant’s guilt. (Hall, supra, 41 Cal.3d at p. 833.) Second, the trial
court must evaluate the evidence under Evidence Code section 352.2 (Id. at pp. 834-835.)
Evidence that is admissible under the first prong of the analysis may still be excluded if it
presents a substantial danger of prejudicing, confusing, or misleading the jury, or
consuming an undue amount of time. (§ 352; Brady, supra, 50 Cal.4th at p. 558.)


       2   All further statutory references are to the Evidence Code.



                                               6.
       Although Hall describes the threshold for admissibility in terms of legal relevance,
subsequent cases uniformly hold that third party culpability evidence is subject to
exclusion under section 1101, subdivision (a) if it merely establishes a third party’s
criminal propensity. (Elliott, supra, 53 Cal.4th at p. 580; People v. McWhorter (2009) 47
Cal.4th 318, 372-373 (McWhorter); People v. Lewis (2001) 26 Cal.4th 334, 372-373;
People v. Davis (1995) 10 Cal.4th 463, 500-501 (Davis).) The use of character evidence
is permissible for alternative purposes such as proving motive, opportunity, knowledge,
or intent. (§ 1101, subd. (b).) If relevant for no other reason than to show a criminal
disposition, such evidence “‘does not amount to direct or circumstantial evidence linking
the third person to the actual perpetration of the crime.’” (McWhorter, supra, 47 Cal.4th
at p. 373, quoting Davis, supra, 10 Cal.4th at p. 501.)
       Saucedo’s trial counsel essentially conceded that the relevance of Sanchez’s
criminal history, for purposes of third party culpability, was limited to his propensity for
dealing drugs. Noting both men were found in the same room where the narcotics were
seized, counsel argued the jury would be more likely to conclude Sanchez was the drug
dealer, rather than Saucedo, because Sanchez had previously been convicted of
transporting and selling methamphetamine.
       When confronted with the strictures of section 1101, counsel submitted that the
prohibition against criminal propensity evidence is designed to prevent prejudice to a
defendant, and does not extend to uncharged third parties. This argument has been
rejected by the California Supreme Court and lends no support to Saucedo’s position on
appeal. (Davis, supra, 10 Cal.4th at p. 501 [“If the Legislature intended the statute to
apply only to evidence of ‘other crimes’ by a defendant, it could have so provided.”].)
Like the trial court, we find no relevance in Sanchez’s criminal history for purposes of a
third party culpability defense other than to show he was likely dealing drugs on the day
in question because he had done so at other points in time. Therefore, the evidence did



                                             7.
not satisfy the threshold requirement for admissibility and the court did not err by
excluding it pursuant to section 1101, subdivision (a).
       We also agree with the court’s observation that the facts do not comport with the
traditional concept of third party culpability. The essence of the defense is that “a third
person, and not the defendant, committed the crime charged.” (Hall, supra, 41 Cal.3d at
p. 832.) “The sense of Hall is that evidence of third party culpability, when admissible, is
essentially exculpatory in nature. Therefore[,] evidence of third party culpability [does
not] have a tendency to incriminate the accused.” (City of Alhambra v. Superior Court
(1988) 205 Cal.App.3d 1118, 1144 (conc. opn. of Danielson, J.).) In this case, the
evidence supported a theory of joint possession of narcotics for sale by both Sanchez and
Saucedo. Sanchez’s prior convictions did not necessarily suggest Saucedo’s innocence,
and very well may have strengthened the argument that both men were involved in
narcotics trafficking. Saucedo has not cited, nor have we found, any case law allowing
the use of criminal propensity evidence to support a third party culpability defense under
similar or analogous circumstances.
       The next issue is whether the excluded evidence should have been admitted for
purposes of impeachment. Saucedo broadly defines impeachment to mean not only the
discrediting of testimony by a particular witness, but also his more global criticism of the
“shoddy” investigation conducted by the Porterville Police Department. Assuming the
impeachment value of Sanchez’s prior arrests and convictions, the trial court retained
discretion to exclude the evidence pursuant to section 352. (People v. Riccardi (2012) 54
Cal.4th 758, 808-809; People v. Hartsch (2010) 49 Cal.4th 472, 497 (Hartsch).) “‘A trial
court’s exercise of discretion in admitting or excluding evidence … will not be disturbed
except on a showing the trial court exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage of justice.’” (Hartsch,
supra, 49 Cal.4th at p. 497.)



                                              8.
        In the context of section 352, the danger of undue prejudice includes “the
possibility of misuse of the evidence,” i.e., “use of the evidence by the trier of fact for a
purpose for which the evidence is not properly admissible.” (People v. Hoze (1987) 195
Cal.App.3d 949, 954; see also, People v. Cudjo (1993) 6 Cal.4th 585, 610.) Here, despite
the attempt to classify Sanchez’s criminal history as impeachment evidence, it is obvious
Saucedo’s ultimate objective was to create doubt in the minds of the jurors regarding his
own guilt by having them focus on Sanchez’s historical propensity to commit the same
crime. The trial court also expressed legitimate concerns about the potential for juror
confusion over the introduction of character evidence relating to the prior convictions of
a non-testifying third party, especially since the jury was given the standard instruction
under CALCRIM No. 373 not to speculate about whether other people who may have
been involved in the crime had been or would be prosecuted. Under either rationale, it
cannot be said that the trial court acted in an “arbitrary, capricious, or patently absurd
manner” by exercising its discretion to exclude the proffered evidence. Consequently,
Saucedo cannot meet his burden under the standard of review.
        Saucedo’s constitutional claims are untenable given the absence of any error under
state law. (People v. Linton (2013) 56 Cal.4th 1146, 1202 (Linton).) “[T]he routine
application of provisions of the state Evidence Code law does not implicate a criminal
defendant’s constitutional rights.” (People v. Jones (2013) 57 Cal.4th 899, 957.) It
follows that a trial court’s justifiable exclusion of evidence pursuant to standard rules
such as sections 352 and 1101 does not impermissibly infringe upon an accused’s right to
present a defense. (Linton, supra, 56 Cal.4th at p. 1202; Abilez, supra, 41 Cal.4th at p.
503.)
        We also reject Saucedo’s claim that he was deprived of his right to confront
witnesses under the Sixth Amendment to the United States Constitution. “[A] criminal
defendant states a violation of the Confrontation Clause by showing that he was
prohibited from engaging in otherwise appropriate cross-examination designed to show a

                                              9.
prototypical form of bias on the part of the witness, and thereby, to expose to the jury the
facts from which jurors … could appropriately draw inferences relating to the reliability
of the witness.” (People v. Chatman (2006) 38 Cal.4th 344, 372, internal citations and
quotation marks omitted.) However, “the trial court retains wide latitude in restricting
cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal
relevance … Thus, unless the defendant can show that the prohibited cross-examination
would have produced a significantly different impression of [the witnesses’] credibility,
the trial court’s exercise of its discretion in this regard does not violate the Sixth
Amendment.” (Ibid., internal citations and quotation marks omitted.)
       Saucedo had the opportunity to confront Detective Contreras about the underlying
investigation, including his decision not to interrogate or interview Sanchez, and was
limited only by the ruling that he not introduce evidence of Sanchez’s prior convictions.
The result was a lengthy cross-examination which stretched across two days of trial and
highlighted inconsistencies between Detective Contreras’s trial testimony and statements
he had made in his police report and at the preliminary hearing. The cross-examination
further revealed that Detective Contreras amended his official report of the incident at
least four times, with the final revision being made nearly three years after the date of
Saucedo’s arrest. Much time was also devoted to the lack of thoroughness in the
investigation and a review of each piece of evidence the detective and his colleagues had
disregarded at the time of the search.
       The excuse for failing to question Sanchez was scrutinized. After initially denying
he spoke Spanish, Detective Contreras admitted he is able to speak “some” Spanish, but
not fluently. He also acknowledged there are individuals within the Porterville Police
Department who have the proficiency to facilitate an interrogation of a Spanish-speaking
suspect. It eventually came to light that a member of the search team spoke Spanish but
was never asked to assist with any questioning of Sanchez.



                                              10.
       Saucedo does not attempt to explain how evidence of Sanchez’s criminal history
would have dealt a fatal blow to Detective Contreras’s credibility, assuming the jury was
not already skeptical of his veracity by the time he left the witness stand. Any such
conclusion would be conjectural under these facts. Moreover, there is nothing to indicate
Detective Contreras had personal knowledge of Sanchez’s prior convictions during the
relevant time period. In short, the record does not suggest the omitted evidence would
have left the jury with a significantly different impression of the witness’s credibility.
       Saucedo’s arguments pertaining to Detective McGowen’s testimony are without
merit since Detective McGowen was called as a defense witness and questioned on direct
examination. The Confrontation Clause guarantees an opportunity for effective cross-
examination. (Delaware v. Fensterer (1985) 474 U.S. 15, 19-20.) Furthermore,
Detective McGowen was permitted to testify that he knew Sanchez from prior “contacts,”
though he could not remember if he actually saw Sanchez on the day of the incident. No
showing has been made as to how evidence of his familiarity with Sanchez from prior
“arrests,” as opposed to prior “contacts,” would have impeached his credibility. We find
no basis for reversal under the Confrontation Clause or upon any other grounds raised in
this appeal.
                                      DISPOSITION
       The judgment is affirmed.




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