Filed 9/22/16 P. v. Santiago CA2/3

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,                                                             B264448

         Plaintiff and Respondent,                                      (Los Angeles County
                                                                        Super. Ct. No. BA422525)
         v.

FRANCIS SANTIAGO,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
C. H. Rehm, Judge. Affirmed.

         John F. Schuck, under appointment by the Court of Appeal, for Defendant and
Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven E. Mercer and Wyatt E.
Bloomfield, Deputy Attorneys General, for Plaintiff and Respondent.

                                            _____________________
       Appellant Francis Santiago appeals from the judgment entered following his
conviction by jury for possession of cocaine, with court findings he suffered a prior
felony conviction and prior felony convictions for which he served separate prison terms.
(Health & Saf. Code, § 11350, subd. (a); Pen. Code, §§ 667, subd. (d), 667.5, subd. (b).)
We affirm.
                      FACTUAL and PROCEDURAL SUMMARY
1. People’s Evidence.
       a. Trial testimony prior to the Evidence Code section 402 admissibility hearing.
       According to the testimony of Los Angeles Police Officer Christabel Youssef,
Youssef and her partner, Los Angeles Police Officer David Marroquin, were uniformed
and working in a probation compliance unit with probation officer Gregory Jackson when
the three officers drove to Sixth and San Julian in Skid Row about 10:45 a.m. on
November 9, 2013. Youssef’s job was to ensure the surroundings were safe (provide
cover) while Marroquin spoke to a probationer on Sixth. As Youssef exited the police
car, she saw appellant about four feet away from her, sitting in a wheelchair very near to
Chad Peters and another man.
       While Marroquin talked to the probationer, Youssef stood in front of appellant.
Several minutes later, appellant stood, revealing in the wheelchair seat a large plastic
bindle with off-white solids resembling cocaine base. Youssef immediately observed the
bindle. As appellant walked toward a nearby bicycle, Peters and the other man remained
seated. After Youssef recovered the bindle from the wheelchair, she noticed, on an
adjacent table, a razor with off-white residue resembling cocaine base sitting on top of a
book cover.
       b. Testimony during the Evidence Code section 402 admissibility hearing.
       To address the prosecution’s objection to admission of a hearsay statement by
Peters, the court conducted an Evidence Code section 402 admissibility hearing outside
the presence of the jury. The issue was whether the spontaneous statement hearsay
exception in Evidence Code section 1240 applied to Peters’s statement, “It’s all mine.”



                                             2
       In response to questions from appellant’s attorney, Youssef testified appellant was
handcuffed when she advised him of his Miranda1 rights but she did not recall whether,
at that point, Peters was in handcuffs. Youssef explained that as she Mirandized
appellant, the three officers were in the same common area, “We were all within . . .
I would say 15, 20 feet of each other,” and appellant was “answering.” At that time,
Peters yelled out, “It’s all mine.” Youssef explained she was not asking any questions of
Peters when he “just blurted it out.”
       Answering questions from the prosecution, Youssef stated she saw the bindle on
the wheelchair as soon as appellant stood but did not immediately let him know she had
seen it and did not recall saying anything about the bindle in the presence of Peters.
Youssef testified that she believed Jackson was with Peters when he said, “It’s all mine”
and that she was closer to appellant. Youssef Mirandized Peters at the scene, and asked
Peters about his statement, “It’s all mine.” Peters told her “everything that was found
was his,” identifying as his the book cover, the razor on top of the book cover, and the
off-white solids (in rolled smoking paper) in his pocket. Peters did not identify the bindle
on the wheelchair or Crazy Glue bottles found on appellant’s person. After Peters
identified his items, Youssef asked him, “Are you sure?” and Peters answered yes.
       After hearing argument from counsel, the trial court excluded Peters’s statement as
inadmissible hearsay, noting there was no evidence Peters said, “It’s all mine” under
stress and nothing to demonstrate Peters did not have time to fabricate the statement.
Having heard the evidence Peters was referring to the book cover, razor, and off-white
substances rather than the items appellant allegedly possessed, the court excluded the
statement under Evidence Code section 352, determining the statement was likely to
confuse the jury.
       c. Trial testimony after the Evidence Code section 402 admissibility hearing.
       After the admissibility hearing, Youssef testified the adjacent table was within two
feet of appellant, and Peters and the other man were sitting right next to appellant in a

1
       Miranda v. Arizona (1966) 384 U.S. 436 [16 L. Ed. 2d 694].


                                              3
somewhat triangular configuration with Peters closer to the wall of a building.2 The other
man had a cylindrical glass pipe in one hand and a metal rod in the other.
       After Youssef told appellant to stand by and not to leave, Jackson searched
appellant, finding two Crazy Glue bottles, one of which contained four bindles, each of
which contained an off-white solid resembling cocaine base. Jackson also found cash in
appellant’s possession, i.e., $173, consisting of five $20 bills, one $10 bill, two $5 bills,
and fifty-three $1 bills. When Jackson searched Peters, Jackson found a rolled piece of
paper containing off-white solids resembling cocaine base in Peters’s left front pocket. In
response to a hypothetical question based on evidence, Youssef testified she “would be
strongly leaning towards forming the opinion that [appellant] was in possession of those
narcotics for purposes of sales.” During cross-examination, Youssef said that once
appellant stood, she never took her eyes off the wheelchair, she never saw anyone reach
over, and it was not possible anyone tossed the narcotics on the wheelchair.
       Jackson and Marroquin provided testimony corroborating the events described in
Youssef’s testimony. A police criminalist confirmed one of the glue bottles contained
cocaine base and the bindle in the wheelchair consisted of seven bindles containing 2.21
grams net weight of cocaine base.
       2. Defense Evidence.3
       Appellant testified there was nothing on the wheelchair where he had been sitting
and he did not possess drugs that day. Appellant told the jury Youssef lied when she
claimed to have found something in the wheelchair. Although appellant admitted he had
glue bottles on his person, he averred they both contained glue and did not contain any



2
         Youssef testified during cross-examination appellant and the two people with him
were in a triangular configuration “[s]o Mr. Peters was slightly behind him to his left, and
. . . the third male was almost parallel to him to his left.”
3
      The jury was impaneled on June 16, 2014. On June 23, 2014, soon after the
defense began to present evidence, the court granted appellant’s motion to represent
himself and he represented himself at all times thereafter.


                                               4
cocaine before police took possession of them. Appellant admitted possessing cash,
including fifty-three $1 bills, but provided an innocent explanation why he had them.
       On cross-examination, appellant admitted having suffered two felony burglary
convictions on January 12, 2006, and March 20, 2008, respectively, and an April 14,
2011 felony grand theft conviction.
3. Rebuttal Evidence.
       In rebuttal, Youssef testified that after she noticed cocaine base residue on
appellant’s left hand, he admitted to her the narcotics found on his person were for
personal use.
                                          ISSUES
       Appellant claims the trial court erroneously excluded Peters’s statement, “It’s all
mine.” Appellant also claims the trial court abused its discretion by denying his request
for permission to withdraw his waiver of his right to a jury trial on the prior conviction
allegations.
                                      DISCUSSION
1. The Trial Court Properly Excluded Peters’s Statement.
       Appellant claims the trial court erred by ruling the Evidence Code section 1240
spontaneous statement hearsay exception4 did not apply to Peters’s statement and by
excluding the statement under Evidence Code section 352.5 We reject appellant’s claim.




4
       Evidence Code section 1240, states, “Evidence of a statement is not made
inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or
explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made
spontaneously while the declarant was under the stress of excitement caused by such
perception.” Evidence Code section 170, states, “ ‘Perceive’ means to acquire
knowledge through one’s senses.”
5
      Evidence Code section 352, states, “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.”


                                              5
       “The admissibility requirements for [spontaneous statements] are well established.
‘ “(1) [T]here must be some occurrence startling enough to produce this nervous
excitement and render the utterance spontaneous and unreflecting; (2) the utterance must
have been before there has been time to contrive and misrepresent, i.e., while the nervous
excitement may be supposed still to dominate and the reflective powers to be yet in
abeyance; and (3) the utterance must relate to the circumstance of the occurrence
preceding it.” [Citations.]’ [Citation.] A statement meeting these requirements is
‘considered trustworthy, and admissible at trial despite its hearsay character, because “in
the stress of nervous excitement, the reflective faculties may be stilled and the utterance
may become the instinctive and uninhibited expression of the speaker’s actual
impressions and belief.” [Citation.]’ [Citation.]” (People v. Merriman (2014) 60 Cal. 4th
1, 64 (Merriman).)
       “Whether an out-of-court statement meets the statutory requirements for
admission as a spontaneous statement is generally a question of fact for the trial court, the
determination of which involves an exercise of the court’s discretion. [Citation.] We
will uphold the trial court’s determination of facts when they are supported by substantial
evidence and review for abuse of discretion its decision to admit evidence under the
spontaneous statement exception. [Citations.]” (Merriman, supra, 60 Cal.4th at p. 65.)
An appellate court applies an abuse of discretion standard of review to a trial court ruling
on an Evidence Code section 352 issue. (People v. Waidla (2000) 22 Cal. 4th 690, 724.)
       Aside from Peters’s presence in an area where a probationer and appellant were
speaking to the uniformed officers, there was no evidence presented at the Evidence Code
section 402 hearing Peters was experiencing stress when he blurted out, “It’s all mine.”
No one was speaking to Peters when he made the statement. There is no evidence that
when he made the statement he was handcuffed or saw the bindle on the wheelchair.6
While Peters’s presence among uniformed officers with his own narcotics on a nearby
6
       Youssef testified the three men were sitting in a triangular fashion with appellant
facing the street and Peters closest to the building, suggesting Peters was slightly behind
appellant with an obstructed view of any narcotics in the wheelchair.


                                             6
table might give rise to an inference he was experiencing some degree of stress, that
inference was undermined by substantial evidence Peters had an opportunity for
reflection and fabrication. Prior to the admissibility hearing, Youssef testified she was
standing in front of appellant for several minutes before appellant stood from the
wheelchair. She spent additional time ordering appellant to stop, and Mirandizing him,
before Peters made his statement. We therefore conclude the court did not abuse its
discretion in determining, based on the lapse of time, the spontaneous statement hearsay
exception did not apply.
       We also conclude no abuse of discretion occurred in the court’s determination the
statement should be excluded under Evidence Code section 352. After Peters was
Mirandized, he specified what was his: the book cover, the razor on top of the book
cover, and the off-white solids Peters had in his pocket. Peters did not claim the bindle
found in appellant’s wheelchair or the glue bottles in appellant’s possession belonged to
Peters. As there was no evidence supporting an inference his statement, “It’s all mine,”
had anything to do with the items found in appellant’s possession, the statement had little
probative value and posed a significant danger of misleading or confusing the jury.7
       Even if the trial court had erred by excluding the challenged statement, we would
not reverse the judgment. As recounted above, the People’s evidence against appellant
was quite strong and the jury reasonably could have rejected, as fabrication, appellant’s
story suggesting all police witnesses lied and police planted the narcotics in the
wheelchair and in the glue bottles found in his possession. With Peters in possession of
his own narcotics and the razor and residue in plain view on a nearby table, and no


7
       Appellant argues the fact Peters’s statement was “against [Peters’s] penal
interests” provides a particularized guarantee of trustworthiness or indicum of reliability.
We do not understand this to be a claim Evidence Code section 1230 applies to the
statement and we reject any such claim because it is perfunctory and undeveloped,
without supporting argument or authority, and not made under a separate heading in
appellant’s brief. (Cf. People v. Jones (1998) 17 Cal. 4th 279, 305; People v. Carroll
(2014) 222 Cal. App. 4th 1406, 1412, fn. 5; In re Keisha T. (1995) 38 Cal. App. 4th 220,
237, fn. 7.)


                                             7
evidence Peters knew anything about the bindle in the wheelchair or the narcotics in
appellant’s pockets, there is no reasonable probability the jury would have interpreted
“It’s all mine” to be a claim of ownership of the items found in appellant’s possession.
At best, it proved a joint possession by appellant and Peters. We therefore conclude any
error in excluding the challenged statement was not prejudicial and did not violate
defendant’s right to due process. (Cf. People v. Watson (1956) 46 Cal. 2d 818, 836
(Watson); People v. Fudge (1994) 7 Cal. 4th 1075, 1102-1103.)
2. The Trial Court Properly Denied Appellant’s Motion to Withdraw His Waiver of His
Right to a Jury Trial on the Prior Conviction Allegations.
       The information filed April 15, 2014, alleged as to count 1 appellant possessed
cocaine base for sale (Health & Saf. Code, § 11351.5) and suffered a 1986 conviction
(case No. SCR-43355) for purposes of Penal Code section 1170, subdivision (h)(3) and
the Three Strikes law. The information also alleged as to count 1 appellant suffered
seven prior felony convictions for which he served separate prison terms for purposes of
Penal Code section 667.5, subdivision (b).8 At appellant’s April 15, 2014 arraignment,
he pled not guilty and denied the prior conviction allegations.
       On June 23, 2014, the jury retired to deliberate on count 1. On June 24, 2014,
during jury deliberations, the court asked appellant whether he wanted to admit the prior
conviction allegations or wanted a jury or court trial on those allegations. Appellant
replied he would “rather have the court to make that consideration” and indicated he
wanted a court trial on the prior conviction allegations (hereafter, court trial) and at least
a week to prepare. Appellant later expressly waived his right to a jury trial on the prior
conviction allegations. On June 24, 2014, the jury acquitted appellant on count 1 but
convicted him of possessing cocaine as a lesser included offense, and the court
discharged the jury. Appellant indicated he needed time to prepare for the court trial.
The court subsequently continued the court trial several times.
8
      The prior convictions alleged were two 2006 convictions (each under case
No. BA295795), a 2006 conviction (case No. BA309404), a 2008 conviction (case
No. BA333969), and three 2011 convictions (each under case No. SA073814).


                                               8
       On January 5, 2015, the court stated, “we’re here for a pretrial conference day zero
of 20 concerning [appellant’s] court trial on his priors” and “to consider [appellant’s]
[intended but not yet filed] motion for a new trial.” After the court denied appellant’s
request to delay, until after the hearing on his new trial motion, the court trial and the
prosecution’s motion to have him fingerprinted, appellant complained the court was
abusing its power.
       The court acknowledged appellant’s position but stated, “The court has made its
ruling.” Appellant interrupted, asking the court “to take back my waiver of jury trial and
let a jury decide the priors, withdraw that waiver.” The court initially stated, “We can
certainly do that, but we will have a jury here to consider,” but after the prosecution
objected appellant had “waived his right to that,” the court agreed and ruled
“[appellant’s] request to withdraw your jury trial waiver is denied.”
       Appellant’s February 19, 2015 motion to withdraw his waiver of his right to a jury
trial on the prior conviction allegations accused the prosecutor of misleading him in a
malicious attempt to sabotage his defense by telling him the jury was exhausted and it
would be best to release the jury from the trial on the prior conviction allegations. On
February 20, 2015, the court denied the written motion and proceeded to conduct the
court trial.
       To prove the existence of the priors, the People presented (1) an employee in the
priors unit of the district attorney’s office who testified to documentary evidence
reflecting the prior convictions, (2) a police fingerprint identification expert who testified
appellant’s fingerprints were on various portions of the documentary evidence, and
(3) the supporting documentary evidence.9 Appellant did not challenge the sufficiency of
the evidence by presenting counter evidence or argument. Instead, appellant reiterated


9
       The documentary evidence consisted of a Los Angeles Police Department
fingerprint card bearing fingerprints and appellant’s name, certified documents from the
Department of Justice bearing appellant’s name and alias, certified documents from the
Department of Corrections bearing appellant’s name, a CLETS report bearing appellant’s
name and alias, and a criminal complaint, and probation report, bearing appellant’s alias.


                                              9
his position the nonjury trial violated his Fourteenth Amendment rights. The court found
appellant suffered the alleged prior convictions. On March 16, 2015 the court denied
appellant’s new trial motion.10
        Appellant claims the trial court abused its discretion by denying his request to
withdraw his jury trial waiver. We reject the claim. “It is well established that a waiver
of a jury trial, voluntarily and regularly made, cannot afterward be withdrawn except in
the discretion of the court. [Citations.] Absent special circumstances the court may deny
a motion to withdraw such a waiver especially where adverse consequences will flow
from the defendant’s change of mind. In exercising its discretion the court may consider
such matters as the timeliness of the motion to withdraw the waiver, the reason for the
requested withdrawal and the possibility that undue delay of the trial or inconvenience to
witnesses would result from granting the motion.” (People v. Chambers (1972) 7 Cal. 3d
666, 670-671.) We review a trial court’s denial of such a motion for abuse of discretion.
(Id. at p. 671.)
        Appellant’s trial on the prior conviction allegations presented two factual issues:
whether the prior convictions occurred, and whether appellant was the person who
suffered them. (People v. Epps (2001) 25 Cal. 4th 19, 23-25 (Epps); Pen. Code, § 1025,
subds. (b) & (c).) Although Penal Code section 1025 guarantees a right to a jury trial on
the first issue, the trial court, rather than the jury, decides the identity issue. (Epps, at
pp. 23-27; Pen. Code, § 1025, subd. (c).) Appellant was therefore never entitled to a jury
trial as to identity.
        To the extent appellant may have been entitled to a jury trial on whether the prior
convictions occurred, we conclude the court did not abuse its discretion by refusing to
allow appellant to withdraw his waiver. There is no dispute on June 24, 2014, appellant
expressly and validly waived his right to a jury trial on the prior conviction allegations.
On June 24, 2014, appellant also agreed the court trial would proceed on July 3, 2014.


10
      Appellant does not challenge the validity of the court’s denial of the new trial
motion.


                                               10
The record reveals the court continued the court trial multiple times11 while appellant
sought and obtained discovery and asked for time to file written opposition to the court
trial. That opposition (appellant’s January 5, 2015 “Motion to Challenge and Dismiss
Invalid Prior Strike Allegation”) did not request a withdrawal of his waiver. It was only
after the court denied two requests for continuances on January 5, 2015,12 that appellant
verbally “ask[ed] the court to take back [his] waiver of jury trial and let a jury decide the
priors, withdraw that waiver.”
       Setting a jury trial and impaneling a jury would have inevitably delayed the
proceedings. Based on appellant’s multiple requests for continuances on January 5,
2015, and his conduct throughout 2014,13 there is a strong inference appellant’s
motivation was to delay the proceedings. The fact appellant said nothing on January 5,
2015, about the prosecutorial misconduct advanced as the sole justification in his written
February 19, 2015 motion to withdraw his waiver is further evidence his only purpose at
the January hearing was to delay the proceedings. We conclude the trial court did not
abuse its discretion by denying appellant’s oral and written requests to withdraw his
waiver of his right to a jury trial on the prior conviction allegations.




11
       The court continued the court trial to August 20, 2014, and then to November 18,
2014. On November 18, 2014, appellant requested and obtained a third continuance to
January 5, 2015, in order to file written opposition to the court trial. On January 5, 2015,
the court continued the court trial, ultimately to February 20, 2015.
12
       The court denied appellant’s request to continue the prosecution’s motion to
fingerprint him and his request to hold the court trial after the motion for new trial.
13
       As early as October 24, 2014, the court admonished appellant he was wasting
time. Responding to appellant’s complaints about not having copies of various materials
on January 5, 2015, the court reiterated its concern: “it is becoming more apparent . . .
that you are engaged in a delaying process. You don’t do the things that you are required
to do and expect more time essentially not to get them done [even though] [t]here is
nothing wrong with your intellect as reflected in the motions that you filed.”


                                              11
       Even if the trial court abused its discretion, it does not follow we must reverse the
true findings on the prior conviction allegations. There is no constitutional right to a jury
trial on prior conviction allegations; the right is statutory only. (People v. Cross (2015)
61 Cal. 4th 164, 172; People v. Vera (1997) 15 Cal. 4th 269, 276-277.) We evaluate the
alleged error under the Watson standard. (Epps, supra, 25 Cal.4th at pp. 29-30.)
       We note that in response to questions from the prosecution at appellant’s jury trial
for cocaine possession, appellant admitted to two felony burglary convictions in 2006 and
2008, respectively, and a 2011 felony grand theft conviction. Had a jury been impaneled,
the only factual issue for it to decide would have been whether the prior convictions
occurred. In the court trial, the prosecution’s evidence that all of the priors occurred was
strong as the witnesses authenticated official government records, many certified, that
clearly established the prior convictions. Appellant meanwhile declined to cross-examine
the prosecution witnesses or offer evidence or argument challenging the fact the prior
convictions occurred. We therefore conclude appellant did not suffer any prejudicial
error resulting from the determination by the court, rather than a jury, that his prior
convictions occurred. (Epps, supra, 25 Cal.4th at pp. 29-30.)




                                             12
                                     DISPOSITION
      The judgment is affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                HOGUE, J.

We concur:




                    EDMON, P. J.




                    ALDRICH, J.





        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


                                           13