Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County No. SCD197448, David M. Gill, Judge. Affirmed.
OPINION
HUFFMAN, J.
A jury convicted Julio Angel Gonzalez of possessing marijuana for sale. (Health & Saf. Code, § 11359.) In a bifurcated proceeding, Gonzalez admitted to one prior serious felony conviction or "strike" within the meaning of the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i) 1170.12) and two prison priors (§§ 667.5, subd. (b), & 668). The court granted Gonzalez's motion to strike his prior serious felony conviction, and sentenced Gonzalez to prison for the middle term of two years for the possession of marijuana for sale plus two one-year sentence enhancements for the prison priors.
Statutory references are to the Penal Code unless otherwise noted
Gonzalez appeals, contending the court abused its discretion in admitting into evidence an exhibit for which the prosecution failed to establish an unbroken chain of custody, and such error prejudiced Gonzalez and requires reversal of his conviction. We disagree and affirm the judgment.
FACTS
On March 4, 2006, San Diego Police Officer Joel Schmid parked his vehicle on the fourth floor of a parking structure near the 1200 block of Imperial Avenue. While using binoculars and standing outside his car, Schmid observed Julio Angel Gonzalez on the corner of 14th Street and Imperial in downtown San Diego, reaching into a plastic bag with an open hand and removing his hand in a closed fist. With his fist closed, Gonzalez walked half a block down Imperial where he met with an unidentified African-American male. The unidentified man put his hands around Gonzalez's and Gonzalez then opened his hand while the unidentified man closed his. The two then separated and walked in opposite directions.
While Gonzalez was walking back to the corner of 14th and Imperial, Officer Schmid noticed two individuals who appeared to be scanning the area. When Gonzalez returned to the corner, Schmid observed him moving his left shoe back and forth. After examining the area, Gonzalez again reached into the plastic bag with an open hand, and removed his hand in a closed fist. Schmid watched as Gonzalez crossed the street and met with an unidentified Hispanic man. The two appeared to shake hands, and exchange something olive green colored which Schmid believed to be money.
After the encounter, Gonzalez walked away from the Hispanic man and met with another unidentified African-American man. Gonzalez reached towards the unidentified man with a closed fist. The man put his hand out, made a fist, and walked away.
While walking back to the corner of 14th and Imperial, Officer Schmid saw Gonzalez counting money. He watched as Gonzalez talked with, and handed cigarettes to a man named Afoa. Upon arrival at the corner, Gonzalez again reached into the plastic bag and removed his hand in a closed fist. After removing his hand from the bag, Gonzalez met with a third unidentified African-American man and opened his hand towards him. The man reached into his shirt pocket and walked away. Gonzalez returned to the corner of 14th and Imperial near the plastic bag.
At this point, Officer Schmid approached Gonzalez and asked his name. Gonzalez said his name was Pedro Rivera. Schmid then contacted Afoa, who was walking around waving his hand back and forth above his head. A search by Schmid revealed Afoa was carrying a whistle concealed within a crucifix pendant.
Officer Schmid then examined the plastic bag and discovered a Lean Cuisine box containing an open Ziploc bag of marijuana. After this discovery, Schmid conducted a patdown search of Gonzalez and found $65 in cash in his left pocket, $321 in his left shoe, and a cell phone with the banner "Budmaster."
DISCUSSION
Trial Court's Discretion
Officer Schmid testified People's exhibit 1 contained the suspected drugs found in the plastic bag. The exhibit consisted of a plastic bag containing a Ziploc bag filled with a green leafy substance inside a Lean Cuisine box. Officer Schmid checked out the exhibit from the property clerk at police headquarters and brought the exhibit to the court. He also testified the substance seized from Gonzalez and the items obtained from the property clerk were the same as those he had impounded.
At the close of the prosecution's case, the People moved to admit its exhibits into evidence, including the bag of marijuana in exhibit 1. Gonzalez objected to the foundation of exhibit 1, arguing there was a missing link in the chain of custody without specific testimony from Officer Schmid regarding who signed, touched, and sealed the bag containing marijuana.
The People countered there was no missing link in the chain of custody because there was testimony from Officer Schmid stating the evidence presented all came from one paper bag he impounded under HQ-050018, and the contents of the entire bag were tested. The court overruled Gonzalez's objection, stating the general rule is the chain of custody goes to weight, not admissibility.
On appeal Gonzalez contends the court abused its discretion by admitting into evidence the bag of marijuana presented in court because the prosecution failed to establish a proper continuous chain of custody. Gonzalez further contends he was prejudiced as a consequence of this improper admission. Because we find no abuse of discretion in the court's admission of the bag of marijuana, we need not address whether the admission of evidence prejudiced Gonzalez.
The rules for establishing a proper chain of custody for admission as evidence are well-settled:
" ' "The burden on the party offering the evidence is to show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration. [¶] The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received. Left to such speculation the court must exclude the evidence. [Citations.] Conversely, when it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight." ' [Citations.]" (People v. Lucas (1995) 12 Cal.4th 415, 444 (Lucas).)
A trial court's ruling whether an adequate chain of custody has been established for the admission of evidence is reviewed on appeal under the abuse of discretion standard. (People v. Catlin (2001) 26 Cal.4th 81, 134.) Here, the record indicates Gonzalez was in possession of the Ziploc bag of marijuana when Officer Schmid approached him. Schmid identified the marijuana as belonging to Gonzalez. Gonzalez stipulated the material contained within the Ziploc bag to be marijuana in the amount of 24.83 grams.
Although other law enforcement personnel were likely involved with the handling and testing of the drugs, there was no evidence anyone tampered with the marijuana while it was in the custody of law enforcement between the time of its seizure and testing by the San Diego Police Crime Lab. Gonzalez's reliance on the testimony of Officer Schmid regarding his lack of knowledge concerning who had packaged, sealed, and labeled the marijuana, and his failure to state to a certainty who actually had done such, raises only the "barest speculation" the marijuana was tampered with. (Lucas, supra, 12 Cal.4th 415, 444.)
Gonzalez's contention regarding the chain of custody is speculation, unsupported by any evidence. Accordingly, the trial court properly acted within its discretion to admit the marijuana into evidence, leaving Gonzalez's complaints to any missing foundational link in the chain of custody to the weight of the evidence. (Lucas, supra, 12 Cal.4th at p. 444.)
DISPOSITION
The judgment is affirmed
WE CONCUR: McCONNELL, P. J., BENKE, J.