Filed 8/20/20 P. v. Perez CA2/6
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                         DIVISION SIX


 THE PEOPLE,                                                 2d Crim. No. B299287
                                                          (Super. Ct. No. 18F-11425)
      Plaintiff and Respondent,                            (San Luis Obispo County)

 v.

 ANDREW REY PEREZ,

      Defendant and Appellant.



      A jury found Andrew Rey Perez guilty of possession for sale
of heroin (Health & Saf. Code, § 11351) and possession for sale of
alprazolam (Xanax) (Health & Saf. Code, § 11378). The trial
court suspended imposition of sentence, and placed Perez on
three years’ formal probation. We affirm.
                              FACTS
      Perez had been involved in a dispute with Michael Daniloff.
Perez accused Daniloff of pistol-whipping him and taking $1,800.
Thereafter, shots were fired at Daniloff’s house.
      The day after the shooting, Daniloff’s aunt, Diana
Ballesteros, went to Perez’s house to ask him to stop shooting
into Daniloff’s house. During the meeting, Perez became angry
and complained that Ballesteros did not have Perez’s gun, a
subject that Ballesteros knew nothing about. Perez slammed a
bag of heroin on the table and said, “Here . . . Where’s my piece?”
Ballesteros did not know what he was talking about. Perez
pointed an assault rifle at Ballesteros’s head. She left Perez’s
house and called the police. The police arrested Perez that night.
       The next day, the police executed a search warrant on
Perez’s mother’s house. Perez had been living there since
Thanksgiving. His mother rented a room to a tenant, whom she
had not seen since December 6. The police were searching for the
assault rifle and evidence of narcotic sales.
       Detective Steve Boyett of the Paso Robles Police
Department conducted the search. In the laundry room, he found
a black plastic tote. Inside the tote he found 52.27 grams of
heroin, two functioning digital scales with heroin residue on
them, several unused baggies, a spoon with heroin on it, a tablet
computer, and some male clothing. The laundry room was
accessible to everyone in the house. Heroin is often sold in 0.1
gram doses, so the 52.27 grams would make 522 individual sales.
Boyett also found 100 whole and 13 partial Xanax pills inside the
tote. The pills were green, rectangular, and had “S903” printed
on them. He did not find a prescription.
       When Perez was arrested, the police searched him before
transporting him to the police station. They searched him again
at the station. When they transported him to the jail, the
correctional staff searched him again. Perez was placed in a
holding cell at the jail.
       The jail had eight holding cells. Only one arrestee occupied
a cell. There were surveillance cameras in the area. Deputy




                                 2
Nataly Beltran was working as a corrections officer in the holding
cell area.
       A surveillance video of Perez using the toilet in the holding
cell was shown to the jury. Beltran testified there is a partition
in front of the toilet that blocks a view of the person’s private
parts. All that is visible is the person’s hands and legs.
       Perez pulled down his pants and sat on the toilet. His
hands were constantly in and out of his pants. He threw
something on the floor, and then looked around. Beltran said
Perez was “on the toilet for a while.”
       After Perez was removed, Beltran conducted a search of the
cell. She found next to the toilet near the back wall of the cell a
plastic baggie containing greenish-blue bar-shaped pills with
“S903” imprinted on them. Laboratory tests showed the pills
were Xanax. Beltran also found in front of the toilet a black felt
bag covered with toilet paper. The bag was empty.
                               DEFENSE
       Perez elected to stand on the People’s evidence.
                             DISCUSSION
                                   I.
                          Surveillance Video
       Perez contends the trial court erred in admitting the
surveillance video showing an uncharged crime.
       (a) Relevance
       Perez argues the surveillance video was irrelevant.
Evidence is relevant if it has any tendency in reason to prove a
disputed fact that is of consequence to the determination of the
action. (Evid. Code, § 210.) Evidence Code, section 1101,
subdivision (b) allows evidence of an uncharged crime when




                                 3
relevant to prove some fact other than the defendant’s disposition
to commit such an act.
       Here the prosecution had the burden of proving that Perez
possessed the drugs found in his mother’s house. The drugs were
found in a laundry room accessible to all members of the
household, including a tenant. The video showed Perez on the
toilet, searching through his pants and dropping something on
the floor. After Perez left the cell, a deputy found beside the
toilet a plastic baggie containing the same type of pill found in his
mother’s house. The evidence had a tendency in reason to prove
Perez possessed the drugs found in his mother’s house.
       Perez points out that in its closing argument, the
prosecution conceded other inmates used the holding cell and
that there is a possibility that the pills were dropped by another
inmate. But that goes to the weight of the evidence, not its
admissibility. (See People v. Wharton (1991) 53 Cal.3d 522, 597
[existence of contrary inferences goes to weight of evidence, not
admissibility].)
       (b) Evidence Code section 352
       Evidence Code section 352 gives the trial court the
discretion to exclude evidence if its probative value is
substantially outweighed by the probability that its admission
will require an undue consumption of time or create substantial
danger of undue prejudice, confusing the issues, or of misleading
the jury.
       Perez objected that the probative value of the video
evidence is substantially outweighed by the danger of undue
prejudice.
       Undue prejudice refers not to evidence that proves guilt,
but to evidence that prompts an emotional reaction against the




                                 4
defendant and tends to cause the trier of fact to decide the case
on an improper basis. (People v. Walker (2006) 139 Cal.App.4th
782, 806.) All evidence that tends to prove guilt is prejudicial to
the defendant’s case; the stronger the evidence, the more
prejudicial. (Ibid.)
      Here, the video shows Perez discarding something in the
area of the toilet where a baggie was found containing pills
similar to those found in his mother’s house. That is highly
probative evidence that Perez possessed the pills found in his
mother’s house.
      Perez argues the video of him using the toilet is
humiliating. But only his hands and feet are visible. Moreover,
simply using the toilet is not by itself prejudicial. It is something
everybody does. What is prejudicial is that the video shows Perez
dropping something in the area where the pills were found. It is
prejudicial in that it tends to prove his guilt. But it is not unduly
prejudicial. It does not tend to cause the jury to decide the case
on an improper basis.
      Perez also claims that the video was prejudicial because it
deprived him of the benefit of wearing nice clothes at trial. But
Perez forfeited the objection by failing to raise it at trial. (People
v. Taylor (1982) 31 Cal.3d 488, 495.) Moreover, he was wearing
his own clothes in the video, not jail garb.
      Perez also argues that the evidence is cumulative and
resulted in an undue consumption of time. Perez fails to point
out where in the record he raised such objections at trial. In any
event, the argument has no merit.
      Perez’s argument that the video evidence is cumulative is
based on the premise that the evidence was admitted to show
Perez possessed the pills in his mother’s house for sale. But it




                                  5
was admitted to show Perez, and not someone else in his mother’s
house, possessed the pills. The evidence was not cumulative.
       Nor did the evidence require an undue consumption of
time. The prosecution had the burden of proving possession. The
video and related evidence were an essential part of the
prosecution’s case. It did not unduly consume time.
       (c) Limiting instruction
       Perez argues the trial court had a sua sponte duty to give a
limiting instruction on the use of the evidence. Ordinarily the
court has no sua sponte duty to instruct on the admissibility or
use of other crimes evidence. (People v. Cottone (2013) 57 Cal.4th
269, 293.) Perez cites People v. Collie (1981) 30 Cal.3d 43, 64 for
the proposition that the trial court has a sua sponte duty to give
such a limiting instruction in the extraordinary case where the
evidence is both highly prejudicial and minimally relevant to any
legitimate purpose. Here the evidence was highly prejudicial in
that it tends to prove guilt, but for the same reason it is not
minimally relevant to any legitimate purpose.
                                  II.
                    Refusal to Declare a Mistrial
       Perez contends the trial court erred in refusing to grant a
mistrial based on the prosecutor’s violation of Doyle v. Ohio
(1976) 426 U.S. 610 (Doyle).
                             Background
       On direct examination, Detective Steve Boyett testified
that he advised Perez of his rights pursuant to Miranda v.
Arizona (1966) 384 U.S. 436 (Miranda). Then Boyett invited
Perez to make a statement. The prosecutor asked Boyett, “In
response to your invitation to get Mr. Perez to give a statement,
what, if anything, did he say?” Boyett replied, “I believe he told




                                6
me he didn’t want to speak to me without a lawyer.” Boyett said
he terminated his efforts to get information from Perez.
       The trial court immediately called a recess. Defense
counsel asked for a mistrial. He stated that a jury instruction
would not cure the error. The prosecutor stated that he asked
the question because Detective Boyett testified at the preliminary
hearing that Perez made a statement after he was advised of his
Miranda rights. The prosecutor did not expect Boyett would
testify any differently at trial.
       The trial court stated that it read the preliminary hearing
transcript, and that a reasonable person might not have
anticipated the response Boyett gave at trial. The court found
that the prosecutor did not intentionally elicit evidence of Perez’s
refusal to talk. The court denied Perez’s motion for a mistrial. It
concluded a curative instruction would suffice. At Perez’s
request, the court delayed a curative instruction to the end of
trial.
                              Discussion
       In Doyle, the Supreme Court held that it violates due
process for a prosecutor to impeach a defendant with his silence
after the defendant had been advised of his right to remain silent.
(Doyle v. Ohio, supra, 426 U.S. at p. 619.) There are two
essential components of a Doyle violation: (1) the prosecution
must make use of a defendant’s post-arrest silence for
impeachment purposes, either by questioning or in closing
argument, and (2) the trial court permits that use. (People v.
Evans (1994) 25 Cal.App.4th 358, 368.)
       Here, neither component of a Doyle violation is present.
The prosecutor did not use Perez’s silence for impeachment
purposes, either by questioning or by comment in closing




                                 7
argument. Nor did the trial court permit that use. It called an
immediate recess and gave a curative instruction.
                        DISPOSITION
     The judgment is affirmed.
           NOT TO BE PUBLISHED.




                                    GILBERT, P. J.


     We concur:



           YEGAN, J.



           PERREN, J.




                                8
                   Timothy S. Covello, Judge

           Superior Court County of San Luis Obispo

                ______________________________

      Mi Kim, under appointment by the Court of Appeal, for
Defendant and Appellant.
       Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, David E. Madeo and Kathy S. Pomerantz,
Deputy Attorneys General, for Plaintiff and Respondent.
