IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
December 7, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
SHARON LEE BROWN, DEFENDANT AND APPELLANT.
Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. Affirmed. (Super. Ct. No. 08NF3033)
The opinion of the court was delivered by: O'leary, Acting P. J.
P. v. Brown CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Sharon Lee Brown appeals from a judgment after a jury convicted her of felony possession for sale of a controlled substance and misdemeanor possession of marijuana. Brown argues the trial court erroneously denied her mistrial motion after the prosecutor failed to disclose discovery. We disagree and affirm the judgment.
One September evening, Officer Christopher Nyhus responded to an apartment in Buena Park to investigate reports of suspicious activity. When Nyhus, Detective Tom Carney, and another officer arrived, they found the front door open and a man, woman, and child in the living room. When Nyhus asked whether anyone else was in the apartment, the man stated his mother was in the bedroom. Nyhus knocked on the bedroom door, and Brown opened the door. Nyhus saw two other females stand up from where they sat on the bed.
Nyhus found two butane lighters and butane cans on the bed. Carney asked Brown whether she had any contraband in her bedroom. Brown responded she had methamphetamine and marijuana, and she led him into the bedroom. As Nyhus and Brown talked, Brown reached under her shirt and took out a glass pipe covered in brown and crystalline residue that Nyhus believed Brown used to smoke methamphetamine. She gave the pipe to Nyhus.
Carney searched the bedroom and found two plastic prescription medicine bottles containing methamphetamine, a green plastic container containing two Ziploc baggies of marijuana, a ceramic jar containing a plastic bag with methamphetamine, six narcotics pipes, $4,000 cash underneath the bed that was later determined to be from her 401K savings account, and a digital scale. Nyhus observed the digital scale was covered in a brown crystalline residue he believed was methamphetamine.
Nyhus interviewed Brown at the police station and she admitted the methamphetamine and marijuana were hers. Brown explained she was a long time methamphetamine user who had not used in at least three months. She repeatedly denied selling methamphetamine. Brown claimed she used the digital scale to weigh beads to make jewelry. She claimed the long clear baggies that were in her briefcase were for packaging beads. Brown said she had lost her job, her employer denied her unemployment, and she was living off her retirement account.*fn1
An information charged Brown with possession for sale of a controlled substance, methamphetamine (Health & Saf. Code, § 11378) (count 1), and misdemeanor possession of marijuana (Health & Saf. Code, § 11357, subd. (b)) (count 2).
At trial, the prosecutor offered Nyhus's testimony. He explained that in the days leading up to the incident, the police received telephone calls and an email stating there were many people going to and leaving the apartment.*fn2 He opined Brown possessed the methamphetamine for sale because of the amount of methamphetamine in relation to how often Brown said she used the drug, the digital scale, and the plastic baggies. Nyhus explained that based on how often Brown said she used methamphetamine, the amount she possessed would last one year.
During cross-examination, defense counsel asked Nyhus whether the residue on the scale had been tested. Nyhus replied it had, and defense counsel asked, "It was tested?" Nyhus responded, "Yes." Defense counsel said, "The residue on the scale?" Nyhus again said, "Yes." Defense counsel asked whether it had tested positive for methamphetamine, and Nyhus replied, "Yes."
On redirect examination, the prosecutor asked Nyhus when the residue on the scale was tested, and Nyhus replied, "This morning." Nyhus explained he did a presumptive test called a "NIK" test. Defense counsel requested a sidebar.
At sidebar, defense counsel stated he never received discovery concerning the results of the residue test, and this was the first time he heard about the testing. The prosecutor responded she limited her direct examination on this point to Nyhus's training and experience, and the reason she asked about it on redirect examination was because defense counsel inquired about it on cross-examination. The prosecutor added she learned of the test that morning and in retrospect she should have notified the trial court and opposing counsel. Defense counsel requested a mistrial, which the trial court denied. Defense counsel requested the trial court instruct the jury on late discovery. The court stated it would address that issue at the end of trial.
Defense counsel cross-examined Nyhus regarding the reliability of the NIK test. Defense counsel elicited that Nyhus could not testify as to the test's accuracy and he could not be 100 percent positive the residue on the scale was methamphetamine.
The parties stipulated there were 3.02 grams of methamphetamine and 3.7 grams of marijuana in the bedroom.
After the trial court heard argument and concluded the prosecutor failed to timely disclose discovery, the court stated it would instruct the jury with CALCRIM No. 306, "Untimely Disclosure of Evidence." The trial court instructed the jury with CALCRIM No. 306 as follows: "Both the People and the defense must disclose their evidence to the other side before trial, within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. [¶] An attorney for the People failed to disclose: The results of the chemical test (NI[K]) of the residue on the scale within the legal time period. [¶] In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure." The court refused defense counsel's request to prohibit the prosecutor from mentioning the NIK test during closing argument.
During closing argument, the prosecutor argued: "Now, he even went further and, as you heard when he was being cross-examined, this morning he tested that substance that was on this scale and it was determined to be, what do you know, methamphetamine."
The jury convicted Brown of both counts. The trial court suspended sentence, ordered Brown to serve 270 days in jail, and placed her on three years of formal probation.
Brown contends the trial court erroneously denied her mistrial motion when the prosecutor failed to disclose the results of the residue test from the scale. Brown contends that because the prosecutor failed to disclose the results of the NIK test, she was unable to challenge the admissibility of the test pursuant to Evidence Code sections 210 and 352, and Kelly/Frye.*fn3 We disagree.
Penal Code section 1054.1 states in relevant part: "The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies: [¶]
. . . [¶] (f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial."
Penal Code section 1054.7 requires the prosecutor to disclose the material or information 30 days before trial or if the materials or information becomes known to the prosecutor within 30 days of trial immediately unless good cause is shown.
Penal Code section 1054.5, subdivision (b) provides: "Upon a showing that a party has not complied with Section 1054.1 . . . , a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure."
A trial court has broad discretion to fashion a remedy for a discovery violation, and may consider a wide range of sanctions. (People v. Ayala (2000) 23 Cal.4th 225, 299.) We review the trial court's ruling for abuse of discretion. (Id. at p. 290.)
A trial court may grant a mistrial upon the erroneous admission of incurably prejudicial evidence. "Whether in a given case the erroneous admission of such evidence warrants granting a mistrial or whether the error can be cured by striking the testimony and admonishing the jury rests in the sound discretion of the trial court. [Citation.] '"A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions." [Citation.]" (People v. Harris (1994) 22 Cal.App.4th 1575, 1581.)
Preliminary, we note at sidebar defense counsel did not argue the results of the residue test were inadmissible pursuant to Evidence Code sections 210 and 352, and Kelly/Frye. Nor did defense counsel request the trial court rule the evidence inadmissible and request the court instruct the jury to not consider it. Without deciding the issue, we conclude evidence there was methamphetamine residue on the digital scale was relevant to the issue of whether Brown possessed drugs for sale, and the evidence would not be unduly prejudicial because it would not tend to invoke an emotional bias against Brown. With respect to the Kelly/Frye issue, we agree with Brown there are no published cases addressing the issue of whether the NIK presumptive test is scientifically accepted. But there are many nonpublished cases where this evidence has been admitted in narcotics-related cases.
Here, the trial court properly denied Brown's mistrial motion and instructed the jury on how to evaluate late discovery. We are reminded the trial court has broad discretion in fashioning a remedy for discovery violations. The trial court properly acknowledged it would be difficult to "unring the bell" and ultimately concluded the appropriate remedy was to instruct the jury with CALCRIM No. 306. The court allowed defense counsel wide latitude in attacking the accuracy and reliability of the NIK test. Thus, the trial court properly denied Brown's mistrial motion.
Even were it an abuse of discretion to deny Brown's mistrial motion, we conclude any error was harmless as there was overwhelming evidence Brown possessed the methamphetamine for sale. Brown admitted she was a long time user of methamphetamine but claimed she had not used in three months. Nyhus testified that based on Brown's statement, the amount of methamphetamine she had would last her one year. From this evidence the jury could reasonably infer Brown possessed the methamphetamine not for personal use but to sell. This is buttressed by the evidence Brown possessed Ziploc baggies and a digital scale covered in a brown crystalline substance. Ignoring the results of the residue test, Nyhus opined that based on his training and experience, the residue was methamphetamine. Also, Brown gave Nyhus a pipe that was covered in the same residue. Thus, there is not a reasonable probability had the results of the reside test not been admitted, Brown would have received a more favorable result.
Finally, to the extent Brown claims the prosecutor acted in bad faith by testing the residue on the digital scale the morning of Nyhus's testimony when she had the scale in her possession for the prior eight months, the record demonstrates the prosecutor did not request Nyhus test the residue. Although we do not condone the prosecutor's failure to disclose the testing to the defense, the record reveals Nyhus tested the residue on the scale on his own without any prompting from the prosecutor.
The judgment is affirmed.
WE CONCUR: MOORE, J. IKOLA, J.