People v. Vigil CA4/2

• Court: California Court of Appeal
• Decided: April 28, 2014
• Docket: E057420
• Status: Unpublished

Opinion

Filed 4/28/14 P. v. Vigil CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E057420

v. (Super.Ct.No. RIF1106246)

JAMES RAY VIGIL, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Ronald L. Johnson,

Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant

to art. VI, § 6 of the Cal. Const.) Affirmed.

Thomas K. Macomber, under appointment by the Court of Appeal, for Defendant

and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Linh Lam,

Deputy Attorneys General, for Plaintiff and Respondent.

1 Defendant James Ray Vigil appeals his conviction for transportation of

methamphetamine, possession of methamphetamine for sale and possession of drug

paraphernalia. He contends that the omission of jury instructions on accomplice

testimony and of a limiting instruction on the use of evidence admitted pursuant to

Evidence Code section 1101, subdivision (b), either individually or cumulatively, require

reversal of his conviction. We find no prejudicial error, either individually or

cumulatively.

PROCEDURAL HISTORY

An information charged defendant with possession of methamphetamine for sale

(Health & Saf. Code, § 11378; count 1), transportation of methamphetamine (Health &

Saf. Code, § 11379, subd. (a); count 2), and possession of drug paraphernalia (Health &

Saf. Code, § 11346; count 3). The information also alleged one strike prior. (Pen. Code,

§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1).)

A jury convicted defendant on all three counts and the trial court found the strike

allegation true.

The court sentenced defendant to the middle term of three years on count 2,

doubled pursuant to Penal Code sections 667, subdivisions (c) and (e)(1) and 1170.12,

subdivision (c)(1). The court imposed a term of four years on count 1, stayed pursuant to

Penal Code section 654, and a concurrent term of 90 days in county jail on count 3.

Defendant filed a timely notice of appeal.

2 FACTS

About 11:30 p.m. on December 25, 2011, Riverside Police Officer Jeff Maier

stopped a silver Dodge Charger for having no rear license plate. The car was occupied

by defendant and Sarah Roberts. Defendant was driving. The car was registered to

Roberts’ mother. Both occupants appeared to Maier to be under the influence of a drug

or alcohol.

Maier detained and handcuffed defendant. During a patdown search, Maier found

a cell phone in defendant’s pocket. The phone received three or four calls during the

investigation. Maier also found $100 on defendant’s person.

Maier placed defendant in the rear seat of his patrol car. He then spoke to Roberts

and directed her to sit on the front push bar of his patrol car. He called for a female

officer to conduct a patdown. Maier searched a black backpack which was in the rear

seat of the Charger, within reach of both the driver and the passenger. The backpack

contained a pair of men’s basketball shorts, a container of men’s deodorant, several

empty plastic baggies and a gram scale. When Maier asked Roberts if the backpack was

hers, she said it was not and gestured toward defendant, apparently indicating that it

belonged to him. Roberts told him that she had a glass methamphetamine pipe in the

waistband of her pants. She retrieved the pipe and gave it to Maier. The pipe was

wrapped in a bandana and had burn marks on it.

3 Officer Reed, a female, conducted a patdown search of Roberts. From Roberts’

brassiere,1 she retrieved 10 baggies, similar to those in the backpack. The baggie

contained a white substance later determined to contain methamphetamine.

Officer Maier searched defendant’s cell phone and found an exchange of text

messages which, in his opinion, indicated that defendant engaged in drug sales. Maier

opined that defendant had the baggies and the scale because he was getting ready to sell

the methamphetamine.

Caroline Sjogren, who lived across the street from defendant for several months

before his arrest in this incident, testified that between July 1 and December 25, 2011, she

saw defendant engage in suspicious activities. At all hours of the day and night,

defendant would walk out of his house, approach cars parked a short distance away and

conduct a quick exchange or handshake with the person in the car. These exchanges

varied. Sometimes it would be only a handshake before defendant walked away;

sometimes he exchanged words with the occupant of the car and sometimes he did not;

sometimes there was shouting. The exchange would sometimes involve a plastic

sandwich bag or a brown paper bag. Sometimes visitors would go to defendant’s house

and leave again after a short period of time. The exchanges involved people of different

ages, sexes and races.

Or her “brazier,” according to the Attorney General. It was, after all, a chilly 1 December night.

4 Detective Lackey testified as an expert in drug sales. He opined that the

methamphetamine in this case had a street value of $250 to $300, or double that amount

if broken down into smaller packages. Based on the trial evidence and his review of the

police reports, he opined that the methamphetamine was possessed for sale. He also

testified that to avoid being found in possession of drugs by the police, drug dealers will

sometimes hide their drugs on the person of a female companion who is not on probation

or parole and would not be searched if they were stopped by the police. He testified that

drug dealers know that male officers are hesitant to search females, so the dealers will

have their female companion hide the drugs inside their clothing or in a body cavity.

DISCUSSION

1.

THE OMISSION OF AN ACCOMPLICE INSTRUCTION WAS NOT PREJUDICIAL

“A conviction can not [sic] be had upon the testimony of an accomplice unless it

be corroborated by such other evidence as shall tend to connect the defendant with the

commission of the offense; and the corroboration is not sufficient if it merely shows the

commission of the offense or the circumstances thereof. An accomplice is hereby

defined as one who is liable to prosecution for the identical offense charged against the

defendant on trial in the cause in which the testimony of the accomplice is given.” (Pen.

Code, § 1111.) Roberts was charged with the same offenses as defendant. Defendant

contends that Roberts was an accomplice as a matter of law and that the trial court had a

sua sponte duty to instruct the jury using CALCRIM No. 335, or in the alternative,

5 CALCRIM No. 334.2 He contends that because Roberts’ testimony was the centerpiece

of the prosecution’s case, the court’s failure to so instruct the jury deprived him of his

2 CALCRIM No. 335 applies when there is no dispute that a witness was an accomplice. It provides: “If the crime[s] of (was/were) committed, then (was/were) [an] accomplice[s] to (that/those) crime[s]. “You may not convict the defendant of based on the (statement/ [or] testimony) of an accomplice alone. You may use the (statement/ [or] testimony) of an accomplice to convict the defendant only if: “1 The accomplice’s (statement/ [or] testimony) is supported by other evidence that you believe; “2 That supporting evidence is independent of the accomplice’s (statement/ [or] testimony); [¶] AND “3 That supporting evidence tends to connect the defendant to the commission of the crime[s]. “Supporting evidence, however, may be slight. It does not need to be enough, by itself, to prove that the defendant is guilty of the charged crime, and it does not need to support every fact (mentioned by the accomplice in the statement/ [or] about which the witness testified). On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime. “[The evidence needed to support the (statement/ [or] testimony) of one accomplice cannot be provided by the (statement/ [or] testimony) of another accomplice.] “Any (statement/ [or] testimony) of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that (statement/ [or] testimony) the weight you think it deserves after examining it with care and caution and in the light of all the other evidence.”

CALCRIM No. 334 provides: “Before you may consider the (statement/ [or] testimony) of as evidence against (the defendant/ ) [regarding the crime[s] of ], you must decide whether ) (was/were) [an] accomplice[s] [to (that/those) crime[s]]. A person is an accomplice if he or she is subject to prosecution for the identical crime charged against the defendant. Someone is subject to prosecution if: “1 He or she personally committed the crime; [¶] OR “2 He or she knew of the criminal purpose of the person who committed the crime; [¶] AND [footnote continued on next page]

6 [footnote continued from previous page] “3 He or she intended to, and did in fact, (aid, facilitate, promote, encourage, or instigate the commission of the crime[;]/ [or] participate in a criminal conspiracy to commit the crime). “The burden is on the defendant to prove that it is more likely than not that (was/were) [an] accomplice[s]. “[An accomplice does not need to be present when the crime is committed. On the other hand, a person is not an accomplice just because he or she is present at the scene of a crime, even if he or she knows that a crime will be committed or is being committed and does nothing to stop it.] “[A person who lacks criminal intent but who pretends to join in a crime only to detect or prosecute those who commit that crime is not an accomplice.] “[A person may be an accomplice even if he or she is not actually prosecuted for the crime.] “[You may not conclude that a child under 14 years old was an accomplice unless you also decide that when the child acted, (he/she) understood: “1 The nature and effect of the criminal conduct; “2 That the conduct was wrongful and forbidden; [¶] AND “3 That (he/she) could be punished for participating in the conduct.] “If you decide that a (declarant/ [or] witness) was not an accomplice, then supporting evidence is not required and you should evaluate his or her (statement/ [or] testimony) as you would that of any other witness. “If you decide that a (declarant/ [or] witness) was an accomplice, then you may not convict the defendant of based on his or her (statement/ [or] testimony) alone. You may use the (statement/ [or] testimony) of an accomplice to convict the defendant only if: “1 The accomplice’s (statement/ [or] testimony) is supported by other evidence that you believe; “2 That supporting evidence is independent of the accomplice’s (statement/ [or] testimony); [¶] AND “3 That supporting evidence tends to connect the defendant to the commission of the crime[s]. “Supporting evidence, however, may be slight. It does not need to be enough, by itself, to prove that the defendant is guilty of the charged crime[s], and it does not need to support every fact (mentioned by the accomplice in the statement/ [or] about which the accomplice testified). On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime. “[The evidence needed to support the (statement/ [or] testimony) of one accomplice cannot be provided by the (statement/ [or] testimony) of another accomplice.] [footnote continued on next page]

7 federal constitutional trial rights and/or constituted prejudicial error under People v.

Watson (1956) 46 Cal.2d 818.

The Attorney General contends that Roberts was not an accomplice but merely an

accessory, and that the omission of CALCRIM No. 334 or CALCRIM No. 335 was

therefore not error. In the alternative, she contends that if the omission was error, it was

harmless because the record includes sufficient corroborating evidence.

We agree that Roberts was an accomplice as defined in Penal Code section 1111.

However, the omission of an accomplice instruction was not prejudicial.

“The general rule is that the testimony of all witnesses is to be judged by the same

legal standard. In the case of testimony by one who might be an accomplice, however,

the law provides two safeguards. The jury is instructed to view with caution testimony of

an accomplice that tends to incriminate the defendant. It is also told that it cannot convict

a defendant on the testimony of an accomplice alone.” (People v. Howard (2008) 42

Cal.4th 1000, 1021–1022, italics omitted.)

“Error in failing to instruct the jury on consideration of accomplice testimony at

the guilt phase of a trial constitutes state-law error, and a reviewing court must evaluate

whether it is reasonably probable that such error affected the verdict. [Citation.] [¶] Any

error in failing to instruct the jury that it could not convict defendant on the testimony of

[footnote continued from previous page] “Any (statement/ [or] testimony) of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that (statement/ [or] testimony) the weight you think it deserves after examining it with care and caution and in the light of all the other evidence.”

8 an accomplice alone is harmless if there is evidence corroborating the accomplice’s

testimony. ‘“Corroborating evidence may be slight, may be entirely circumstantial, and

need not be sufficient to establish every element of the charged offense.”’ [Citation.]”

(People v. Williams (2010) 49 Cal.4th 405, 456.) The corroborating evidence is

sufficient “‘“if it does not require interpretation and direction from the testimony of the

accomplice yet tends to connect the defendant with the commission of the offense in such

a way as reasonably may satisfy a jury that the accomplice is telling the truth.”’”

(People v. Szeto (1981) 29 Cal.3d 20, 27.) Although the corroborating evidence

“‘“must do more than raise a conjecture or suspicion of guilt, it is sufficient if it tends in

some degree to implicate the defendant.” [Citation.]’” (Ibid.)

The following evidence sufficiently connected defendant with the commission of

the offenses, independent of Roberts’ testimony:

Officer Maier testified that at the time of the stop, Roberts had on her person a

glass pipe which could be used to smoke methamphetamine and 10 baggies containing

what turned out to be methamphetamine. The backpack in the rear passenger area of the

car was within reach of both the driver and the passenger. The backpack contained

additional empty baggies similar to those found on Roberts and a gram scale. The

backpack also contained men’s basketball shorts and a container of men’s deodorant.

The backpack did not contain any items which indicated that it might belong to Roberts.

Maier also observed a text message exchange on defendant’s cell phone which, in his

opinion, concerned a drug transaction. Finally, both defendant and Roberts appeared to

be under the influence of a drug or alcohol.

9 Detective Lackey testified that the methamphetamine was packaged for sale, based

on the quantities, the packaging and the text message exchange on defendant’s cell

phone. He also testified that it is common for drug dealers to pass off their drugs to a

female companion if they anticipated being stopped, because a female, unless she is on

probation or parole, is not likely to be searched.

Caroline Sjogren’s testimony concerning defendant’s activities on the street where

they both lived supported the inference that defendant was engaging in selling drugs

before this incident.

Even without Roberts’ testimony, this evidence would have been sufficient to

support the inference that defendant possessed and transported the methamphetamine for

sale, either individually or jointly with Roberts, and that he possessed the pipe, also either

individually or jointly with Roberts. A fortiori, it was sufficient to corroborate her

testimony. Accordingly, we reject defendant’s contention that it was “only because of

[Roberts’] testimony” that possession of the methamphetamine and the pipe could be

attributed to defendant.

The absence of an accomplice instruction may also be deemed nonprejudicial

where the jury is otherwise instructed as to factors to consider in determining whether a

witness is credible. (See People v. Lewis (2001) 26 Cal.4th 334, 371.) Here, the jury was

given ample reason to view Roberts’ testimony with caution. Roberts testified that she

had entered into a plea agreement which provided that if she fully cooperated with the

investigation into defendant’s possession of controlled substances for sale and if she

testified truthfully, she would be permitted to plead to one count of the lesser charge of

10 simple possession of methamphetamine (Health & Saf. Code, § 11377), the other charges

would be dismissed, and she would be eligible for diversion or drug treatment and would

serve no time in custody. Further, an additional misdemeanor involving a charge of

being under the influence of a controlled substance would be dismissed. Before this

agreement was reached, the district attorney had offered Roberts six months in jail in

return for a plea of guilty to possession of methamphetamine for sale and transportation

of methamphetamine. Defense counsel’s closing argument focused on Roberts’

credibility and her motivation to “throw[] [defendant] under the bus” in order to get the

benefit of her plea agreement. And, the jury was instructed that in determining the

weight and credibility of a witness’s testimony, they should consider whether the witness

was influenced by “a personal interest in how the case is decided” or whether the witness

was promised leniency.

For the foregoing reasons—both the sufficiency of independent evidence

connecting defendant to the charged offenses and the sufficiency of the instruction on

witness credibility—we conclude that it is not reasonably probable that the omission of

the accomplice instruction affected the verdict. (People v. Williams, supra, 49 Cal.4th at

p. 456.)

2.

DEFENDANT DID NOT PRESERVE FOR REVIEW ANY ISSUE PERTAINING TO

THE OMISSION OF CALCRIM NO. 375

Prior to trial, defendant sought an order excluding the testimony of his neighbor,

Caroline Sjogren, concerning her observation of conduct on defendant’s part which might

11 support the inference that defendant was engaged in drug sales out of his home. The

court denied the motion but agreed to hold a hearing pursuant to Evidence Code section

402 before Sjogren testified. After the 402 hearing, the court ruled Sjogren’s testimony

admissible with respect to activities she witnessed between July and December 25, 2011,

the date of the charged offenses.

In her list of requested instructions, defense counsel requested CALCRIM

No. 375, on the use of evidence admitted pursuant to Evidence Code section 1101,

subdivision (b). The instruction was not given. Defendant now contends that the

omission was prejudicial error. We conclude, however, that the issue was not preserved

for appellate review.

Evidence Code section 1101, subdivision (a), provides that, with certain

exceptions not relevant here, “evidence of a person’s character or a trait of his or her

character (whether in the form of an opinion, evidence of reputation, or evidence of

specific instances of his or her conduct) is inadmissible when offered to prove his or her

conduct on a specified occasion.” Subdivision (b) of that statute provides, however, that

“evidence that a person committed a crime, civil wrong, or other act” is admissible when

it is “relevant to prove some fact (such as motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake or accident . . .).” (Evid. Code, § 1101,

subd. (b), hereafter section 1101(b).) CALCRIM No. 375 instructs the jury as to the

limited purpose for which the evidence was admitted pursuant to Evidence Code section

1101(b) and instructs that the evidence is not sufficient by itself to prove that the

defendant is guilty of the offense to which it relates.

12 If evidence is admitted pursuant to section 1101(b), the trial court is required to

give CALCRIM No. 375 upon request. (Evid. Code, § 355.) However, a bare request is

not sufficient: In order to preserve for appellate review a claim that the trial court

erroneously refused a requested instruction, “a defendant must not only request the court

to act, but must press for a ruling. The failure to do so forfeits the claim.” (People v.

Ramirez (2006) 39 Cal.4th 398, 472.) Here, defense counsel requested CALCRIM

No. 375 by checking that instruction on defendant’s list of requested instructions. There

is nothing in the record which shows that the court refused the instruction despite

defendant’s request or that defense counsel explained why the proposed instruction was

proper and requested a ruling. (People v. Ramirez, at p. 472.) That absence, plus the fact

that defense counsel never sought to exclude Sjogren’s testimony on the basis of section

1101(b), suggests that counsel intentionally withdrew her request for CALCRIM

No. 375.3 In any event, any claim of error was forfeited.

3.

THERE IS NO CUMULATIVE ERROR

Defendant argues that even if neither instructional error constitutes reversible error

in itself, the combination of the two errors was prejudicial, thus requiring reversal of his

conviction. We reject this contention because the record is insufficient to preserve

defendant’s claim of error concerning CALCRIM No. 375. Consequently, there is no

basis for a claim of cumulative error.

3 Counsel argued only that the evidence was more prejudicial than probative and should be excluded pursuant to Evidence Code section 352 and on relevance grounds.

13 DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER J. We concur:

RAMIREZ P. J.

KING J.