(Sonoma County Super. Ct. No. SCR-516132). Trial Judge: Hon. Kenneth J. Gnoss.
The opinion of the court was delivered by: Richman, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
For more than 140 years, California jury instructions have referred to the prosecuting authority as "the People." CALJIC used that reference in its instructions, which reference continues today in CALCRIM. Instructed here with CALCRIM instructions, a jury convicted defendants Heliodoro Romero-Arellano and Misael Jimenez-Gutierrez (when referred to collectively, defendants) with possession of methamphetamine for sale (Health & Saf. Code, § 11378) and transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)). Jiminez-Gutierrez was also convicted of evading a police officer (Veh. Code, § 2800.2, subd. (a)).
Both defendants appeal, and each has filed his own brief, also joining in the argument of the other. (See Cal. Rules of Court, rule 8.200(a)(5); People v. Stone (1981) 117 Cal.App.3d 15, 19.) The result is that defendants jointly make two arguments:
(1) the trial court abused its discretion in excluding cross-examination of Officer Tomlin about his testimony in another case; and (2) the jury instructions referring to "the People" violated due process. We conclude that neither argument has merit, and we affirm. The unpublished portion of the opinion explains the reasons for rejecting the first argument. We publish the reasons for rejecting the second.
Neither argument involves the facts giving rise to the convictions, and those facts need not be set forth in detail. The essential facts are that on July 18, 2007, Santa Rosa Police Detective Matthew Tomlin was working as an undercover narcotics officer, dressed in plain clothes and in an unmarked vehicle. Tomlin was parked in a Taco Bell parking lot on Townview Lane, an area that "frequently has a lot of narcotic activity"; he was looking for suspicious vehicles, that is, vehicles that would slowly cruise around.
Tomlin saw a gold Saturn approach and initially park along the sidewalk. Two men were in the Saturn, identified by Tomlin at trial as Jimenez-Gutierrez, the driver, and Romero-Arellano, the passenger. Neither man got out of the car. A short time later the Saturn began to drive "slowly," occasionally stopping, making two or three circles around the area. Tomlin began to follow the Saturn. He also called Officer Patrick Gillette, who was in uniform in a marked police vehicle, and requested that he become involved and, were he to observe a traffic violation, effect a traffic stop.
Gillette drove to the Townview area, located the Saturn, and after a time saw it cross over the limit line into a bicycle lane and also change lanes without signaling. Gillette signaled for the Saturn to pull over, which it did. Gillette got out of his patrol car and began to approach the Saturn; as he reached the right rear quarter panel, the Saturn suddenly sped off. Gillette ran back to his patrol car and began pursuit of the Saturn, with the emergency lights and siren on. The chase reached speeds of 60 to 70 miles per hour, with the Saturn running red lights and crossing over a double yellow line, forcing other drivers to take evasive action. The Saturn was "all over the road."
The pursuit continued along Bennett Valley Road, a winding road, and along the way Gillette saw the passenger throw "at least two" objects out of the window. They "looked like something wrapped in clear plastic of a white-ish type color," and Gillette suspected they contained narcotics. Gillette radioed other officers what he saw, and continued his pursuit for another half-mile, when the Saturn abruptly pulled over to the side of the road. Gillette waited for backup officers to arrive, at which point he ordered the occupants out of the Saturn, one at a time. The first out was Jimenez-Gutierrez, the driver, followed by Romero-Arellano.
Tomlin had seen the Saturn initially pull over when Gillette activated his emergency lights, and also saw it speed away as Gillette approached. Tomlin joined in the pursuit (though not at high speed), and ultimately pulled up alongside Gillette's patrol car when the Saturn finally stopped. Tomlin later searched the Saturn at the scene, and found $910 in the glove compartment.
Meanwhile, Gillette returned to the spot where he saw the objects thrown from the Saturn, and "immediately" located three plastic bags containing a crystal-like white powder some 10 to 15 feet from the road. The bags were free of debris or dirt and were not damp from condensation. Gillette later turned the items over to Tomlin.
Undercover Detective Jessie Cude had heard the radio report about the items thrown from the Saturn, and from the point where the Saturn stopped he walked backwards along Bennett Valley Road. About a quarter-mile back, Cude found on the side of the road a digital scale and five empty plastic sandwich bags rolled up in a ball.
At the police station Tomlin and Cude weighed the three packages at 29.7 grams, 6.5 grams, and 4.6 grams, for a combined weight of 40.8 grams, approximately an ounce and a third. Chemical analysis of two of the bags showed they contained methamphetamine; the third bag was never tested. Qualified as an expert witness, Tomlin gave the opinion that the methamphetamine was possessed for sale, an opinion based on the quantity of methamphetamine, the amount of cash in the Saturn, the scale and drug packaging apparently thrown from the Saturn, and other factors.
The above facts were presented to the jury over three days, October 18, 22, and 23, 2007. The prosecution gave its closing argument on the morning of October 26. The court then gave its brief concluding instructions and placed the matter in the hands of the jury. This was at 9:45 a.m. At 10:32 a.m. the jury requested two exhibits, which the court agreed to provide. By 11:41 a.m. the jury had reached its verdicts.
I. The Trial Court Did Not Abuse Its Discretion in Denying the Motion to Impeach Officer Tomlin
Romero-Arellano filed a motion in limine (Number 16) seeking to "introduce collateral evidence of Officer Tomlin's prior untruthful testimony," specifically, evidence from People v. Whiteman, Super. Ct. Sonoma County, 2005, No. SCR-442438, a Sonoma County domestic violence case (the Whiteman case).*fn2 The motion was supported by a declaration of a deputy public defender, and included four exhibits: portions of the transcript of the cross-examination of Tomlin in the Whiteman case; a copy of the incident report leading to the case; a tape recording of the dispatch conversation between Whiteman and the police department; and a transcript of that dispatch.
The claimed "untruthful testimony" from the Whiteman case was Tomlin's version of events as related at trial, consistent with his incident report, the essence of which was this: as Tomlin approached the motel parking lot he saw Whiteman with his "arms raised" and "yelling." And, the motion essentially asserted, Tomlin's report and his trial testimony were untruthful in light of the dispatch tape.
More specifically, the motion pointed to Tomlin's incident report, which said that as he pulled in to the motel parking lot, he "saw a white male [Whiteman] in the middle of the parking lot yelling out loud." At Whiteman's trial, Tomlin testified it was "absolutely true" that Whiteman was "in the middle of the parking lot with his arms out to the side shouting," essentially confirming his report. According to the motion, Whiteman's call to the police department contradicted this, reflecting that Whiteman was on the telephone when a police officer pulled up. Thus, the motion sought to introduce what it acknowledged was "collateral evidence."
The trial court had obtained all 57 pages of the cross-examination of Tomlin in the Whiteman case, which was later introduced as Court Exhibit 1.*fn3 That transcript revealed that Tomlin was questioned as to why he believed Whiteman was yelling, and he responded that, from approximately 40 yards away, he observed Whiteman with "[b]oth arms up to the side. I don't recall if they were up high or low. I remember the arms being out. It appeared like somebody shouting, like a football coach on the sideline shouting." Tomlin was confronted about this, and the following ensued:
"Q: It is not true, is it Officer, that when you drove up to the scene, Mr. Whiteman was not out in the middle of the parking lot with his arms out yelling to (the victim)?
"A: That's absolutely true that he was in the middle of the parking lot with his arms out to the side shouting upstairs.
"Q: Absolutely true that he was in the middle of the parking lot with his arms out shouting upstairs. Is that your testimony, Officer?
Tomlin was then questioned whether he saw Whiteman with a cell phone or was aware that Whiteman was calling the Santa Rosa Police Department. Tomlin replied that he did not recall a cell phone or any phone conversation taking place, and continued to state he did not know if Whiteman called the department and that he was not doing it in front of him.
At this point the court in the Whiteman case conducted a 402 hearing. During the hearing the defense played a police dispatch tape which recorded Whiteman's call to the department, at the very end of which Whiteman states that he sees an officer approaching. The tape records someone say, "what's up man," and Whiteman responds, "Hi." Whiteman is then asked if he is "Randy?" and he identifies himself as Randy Whiteman. Whiteman then confirms for dispatch that he is with an officer, and the call ends.
Tomlin was questioned during the 402 hearing and stated that he could not identify the voice as either his or that of Officer Matt Clark. Tomlin did agree that Whiteman must have made a phone call, but confirms that he did not see a phone. And after hearing the call, Tomlin concedes that Whiteman must have been on the phone with police when he pulled up. The court in the Whiteman case ultimately allowed the tape to be played to the jury.*fn4 After it was played, Tomlin was again confronted with his testimony about his initial observations when he arrived at the motel. He again confirmed his version of events, a confirmation that included this:
"Q: Your testimony has now changed from 'absolutely;' isn't that correct?
"A: It hasn't changed. That's what I said earlier when you asked me before the break. The windows were up in my car when I pulled in. I do not know what he was saying.
"Q: And, Officer, you know full well, when you put that description of a white male standing in the middle of the parking lot yelling out loud to (the victim), that that was not what had occurred; isn't that correct?
"A: Not at all. It's totally incorrect."
The People filed their own motion in limine, which was essentially the converse of defendant's Motion No. 16, and the court had put ...