Opinion
A101093.
11-26-2003
THE PEOPLE, Plaintiff and Respondent, v. JOEL SANCHEZ PEREZ, Defendant and Appellant.
I. INTRODUCTION
Appellant was convicted of possession of marijuana for sale (Health & Saf. Code, § 11359) and sentenced to two years in state prison. He challenges the conviction on the grounds that (1) the trial court impermissibly directed a verdict by informing the jury that appellants wife had earlier plead guilty to the same offense and instructing the jury on the principles of aiding and abetting; (2) trial counsel was ineffective because he failed to seek the exclusion of evidence of three grams of cocaine possessed by one of appellants friends; failed to challenge a juror who expressed fear of appellant and failed to pursue a motion to dismiss based on the purported violation of appellants speedy trial rights; (3) the trial court erred in denying appellants motion for a new trial; and (4) the cumulative prejudice to defendant of these errors requires reversal. These contentions are without merit and, accordingly, we affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was one of two passengers in a truck pulled over for speeding on Sunday, October 6, 1996 in Sebastopol, California. After appellant identified himself, Officer Soldis, the arresting officer, discovered defendant had two outstanding warrants and arrested him. Both appellant and the other passenger in the car, Pedro Escobedo, claimed not to know the drivers name. However, appellant had the drivers wallet in his pocket and the wallet contained the drivers identification, in the name of Jorge Sanchez Jordan.
The pickup truck was impounded and appellant and Jordan were taken to the police station in Officer Soldiss car. On the way to the station, Soldis observed Jordan making "furtive movements" in the back of the car and this raised Officer Soldiss suspicions. Appellant had $2,800 cash on him and, after he arrived at the police station, posted $2,037 bail in cash.
Officer Soldis searched his police car after appellant was released on bail. On the passenger side floorboard, adjacent to where Jordan had been sitting, Officer Soldis found a clear plastic baggie containing what he believed was either cocaine or methamphetamine.
Later that day, the police discovered that Pedro Escobedo, who had been the other passenger in the truck, had an outstanding warrant for his arrest. Escobedo was arrested. Appellant came to the police station that same day to bail out Escobedo. Appellant was informed that bail for Escobedo was set at $2,500, in excess of the $1,400 in cash appellant offered for bail. Appellant returned later with $2,500 in cash in $100 bills. Because it was a Sunday, a day when banks were closed, and knowing that ATM machines do not dispense $100 bills, Officer Soldis was suspicious of appellants possession of so many $ 100 bills.
The same day, the police found Jordan, the driver of the truck, and arrested him. Jordan said he lived with appellant and appellants wife and consented to a police search of the home. When the police arrived at Jordans and defendants home, appellant, who was standing in the front yard, stated he "had no problem" with a search of the house.
Outside the house, Officer Soldis was aware of a strong smell of marijuana coming from the house. Inside, the police ultimately obtained the consent of appellants wife, Beatriz Sanchez (hereafter Sanchez), to search the house.
In the closet of the houses master bedroom, the police found ten 32-gallon garbage bags containing marijuana. The police also found two loaded shotguns and $2,000 in cash in the closet. Paperwork in defendant and his wifes names was found in the master bedroom and on the refrigerator in the kitchen. The police also seized two boxes of unused gallon-sized zip lock bags in the master bedroom and, in the closet of another bedroom, a two-way radio. In the living room, the police found a duffel bag containing rope, flashlights, binoculars, scissors, mens clothing and food. On top of the refrigerator was a triple-beam scale and inside the refrigerator, bags of marijuana bud. The total weight of the marijuana seized in this search was between 65 and 70 pounds. Department of Justice criminalist Gregory Popovich, an expert in the field of controlled substance analysis, testified that the suspected contraband was marijuana.
The pickup truck in which appellant was riding was owned by appellant. He never claimed it from the tow yard where it had been taken after being impounded.
Sonoma County Sheriffs Detective Andrea Salas, an expert in the fields of marijuana recognition and investigations, testified that the seized items were consistent with marijuana trafficking and cultivation and that the large amount of marijuana was possessed for the purpose of sales.
Appellant testified in his defense that, on October 6, 1996, he had not been home for several nights because he was having difficulties with his wife because he had decided to find work in Georgia. He did not know there was marijuana stored in his bedroom closet. Immediately after he consented to the search on October 6, 1996, he left to find work in Georgia. After working in Georgia for six months, appellant returned to his home. He did not speak to his wife while he was away in Georgia. While he was away, he did not know the police had arrested his wife for marijuana possession. Sometime in the year before his trial, he learned that an arrest warrant had been issued against him and he turned himself into the police.
Appellant testified that certain persons, work companions from his home region in Mexico, had brought bags into his home. Although he was not sure of their true names, he believed one of them was named Augustin Mondragon.
Appellant was asked about the large amounts of cash he had on him when he paid his bail and that of Jordan. He explained that the money came from a collection meant to cover the cost of a friends funeral and from friends who intended the money to make bail.
Appellant was found guilty of possession of marijuana for sale. The jury found not true the allegation that he possessed a shotgun. After denying his motion for a new trial, the court imposed a two-year sentence in state prison. This timely appeal followed.
III. DISCUSSION
A. Beatriz Sanchez Guilty Plea
In November 1996, appellants wife, Sanchez, pled guilty to a charge of planting, cultivating, harvesting, drying or processing marijuana. Appellant now contends the trial court erred when it took judicial notice of his wifes case file and informed the jury of the charges against her and the plea bargain reached regarding those charges. Appellant also argues the trial court erred when it instructed the jury on the definitions of principals and aiding and abetting. Although the trial court should not have informed the jury of Sanchezs guilty plea, we find any error to be harmless. We also do not agree that the instructions on principals and aiding and abetting were erroneous.
Before trial, the People moved in limine for an order that appellant "refrain from blaming a third party without an evidentiary hearing relating to issues of relevancy and hearsay." The People argued that, without competent evidence, the appellant could not blame someone else for the presence of the marijuana in the house. Appellants counsel stated that such competent evidence "is a matter of record. She has been convicted, has entered a plea of guilty, so it is a matter of the Courts record, whether its in this file or another file, so there shouldnt be any doubt about that." Appellants counsel then asked the court to take judicial notice of Beatriz Sanchez Perezs conviction. The court ordered Sanchezs file from storage and granted the Peoples motion in limine.
In his opening statement, appellants counsel announced that appellants wife would "come in and testify, yes, she had some knowledge of what this was. Not only that, but when charged with this crime, she pled guilty and was punished for that crime. So now it is a question of whether or not he too was involved in this, or if the testimony of the wife will say he did not participate, he did not know it was there, and if that is the evidence, then only she was responsible, and shes already paid that punishment. . . . [¶] So if thats the testimony, that she had the knowledge, she took responsibility, and that she can exculpate Mr. Perez for having been involved in that, and if there is any doubt in your mind about whether or not he had the knowledge, then I will ask you to find him not guilty." The People did not mention Sanchez in their opening statement.
After the defense rested, the People called Sanchez, who they had subpoenaed. Before she testified, however, the court held an in camera hearing on the issue of whether she had been married to appellant at the time of the offense and whether she wished to exercise the privilege. After the hearing, Sanchez chose to exercise the privilege and did not testify.
The People requested the jury be admonished about Sanchezs exercise of the marital privilege, because they had been informed that Sanchez would be a witness. Defense counsel and the People agreed that the court could admonish the jury that Sanchez is "not available as a witness," without any discussion of the marital privilege.
Counsel then discussed proposed jury instructions. Defense counsel objected to instructions on principals and aiding and abetting because there was insufficient evidence in the record to justify giving those instructions. The People argued that appellant had testified that other people were involved in placing the marijuana in his home and that the jury could look on those people as principals. The People also contended that, under the evidence, the jury could view Sanchez as a principal or appellant as a principal with either Mondragon or Sanchez as aiders and abettors.
Defense counsel then requested leave to put evidence before the jury regarding Sanchezs reason for entering into the negotiated plea. Counsel stated this information was necessary to counter any theory that Sanchez was a principal. The trial court refused to do so on the ground evidence of Sanchezs reasons for entering a guilty plea was speculative. However, the court did offer to put before the jury information regarding the plea, of which the court had already taken judicial notice.
Defense counsel then "withdrew" his request for judicial notice because he did not want this information announced to the jury. The People initially agreed with this proposal but several moments later requested that the court announce to the jury that Sanchez had been convicted of the marijuana cultivation charge. Defense counsel objected, stating, "I dont need it."
The trial court ultimately told the jury, "outside of your presence the Court took testimony, and the Court has determined that Ms. Beatriz Sanchez is unavailable as a witness in this case. And although the People had announced she would be called as a witness, she will not provide any testimony in this case. [¶] The Court has also taken judicial notice of its own file at the request of counsel, and the Court needs to let you know that as part of taking judicial notice that Ms. Beatriz Sanchez was charged in this case with two counts. One is an 11359, a count similar to the charge pending against Mr. Sanchez Perez, as well as a Count II, which was a violation of Health and Safety Code section 11358. Health and Safety Code section 11358 provides that every person who plants, cultivates, harvests, dries or processes any marijuana or any part thereof except as otherwise provided by law shall be punished. To that count Ms. Beatriz Sanchez entered a plea of guilty on November 12, 1996. And at the time that she was sentenced on December 23rd, 1996, Count I was dismissed."
In closing argument, the People did not mention Sanchezs guilty plea. The defense told the jury that the guilty plea could not be taken to indicate defendant "has to be equally responsible with his wife." In rebuttal, the People told the jury, "The fact that Beatriz Sanchez . . . was found guilty is significant, but remember, ladies and gentlemen, its significant in that two people can possess the same thing. We have joint possession and we have that constructive possession. And I keep falling back on the fact that this is in his bedroom, in his house. Its hers, too. And remember, he wasnt around to prosecute when she got prosecuted. He was in Georgia, I guess. Thats why were here now. [¶] So the fact that she was found guilty of those crimes is significant, and thats why you have instructions on joint possession, on principals in a crime, on people who aid and abet or assist others in the commission of a crime. Because Mr. Sanchez Perez isnt the only one guilty of this. There are others. Theres probably others we dont know about. This is a big operation. But its disingenuous to sit here and argue that because she pled guilty no one else can be. Thats ridiculous."
We first consider the Peoples argument that this issue has been waived because appellant "had a direct hand in providing the very evidence he now challenges." We disagree.
It is certainly the case that appellant expected Sanchez to testify that she alone was responsible for the marijuana found in the house. In fact, the defense told the jury she would do so in the opening statement. However, when Sanchez invoked the marital privilege and it became clear that she would not be available to give such testimony, the defense promptly withdrew its request that the court take judicial notice of her plea. This case is not, therefore, like People v. Kirkpatrick (1994) 7 Cal.4th 988, 1011, cited by the People in support of their waiver argument. In Kirkpatrick, the defendant attempted to challenge on appeal a ruling granting defendants own motion. Here, of course, appellant withdrew his request for judicial notice. Moreover, appellant quite explicitly objected to the court taking judicial notice of the plea and informing the jury of this fact and did not, as the People contend, fail to object to the courts admonition.
We note the obvious fact that defense counsel did not provide the trial court with a valid objection to this evidence beyond, "I dont need it." Nevertheless, in anticipation of an ineffective assistance of counsel argument, we consider the admissibility of this evidence.
In our view, the jury should not have been informed that Sanchez pleaded guilty to a violation of Health and Safety Code, section 11358. In People v. Leonard (1983) 34 Cal.3d 183, 174, our Supreme Court pointed out that the probative value of a guilty plea by a participant in a crime for which the defendant is on trial is "questionable at best" particularly when it "invites an inference of guilt by association." Similarly, in People v. Cummings (1993) 4 Cal.4th 1233, the court rejected an argument that the guilty plea of another participant in a charged crime was admissible, relevant evidence because it implicated the defendant in the crime. The court held that when evidence of a guilty plea is admitted for this purpose, the declarant must be made available "for purposes of confrontation and cross-examination as guaranteed by the Sixth Amendment." (Id. at p. 1321.) The court also pointed out that any probative value of this evidence was outweighed by its prejudicial impact.
Here, the request for judicial notice of Sanchezs guilty plea came in response to the Peoples motion in limine that, should the defendant argue that someone else was responsible for the charged crime, the defendant must provide competent evidence of this fact in advance. The defense then requested that the court take judicial notice of Sanchezs guilty plea because the defense anticipated that Sanchez would testify that she, alone, was responsible for the contraband. After Sanchez invoked the marital privilege, there was no longer any reason for the court to take judicial notice of her guilty plea or for the jury to be made aware of it and defendant accordingly withdrew the request. In the absence of Sanchezs testimony, evidence of her plea invites an inference of guilt by association and, therefore, the jury should not have been informed of the plea.
Despite the fact that evidence of the guilty plea should not have been admitted, there is no reasonable possibility that appellant would have secured a more favorable result absent this evidence. (People v. Watson (1956) 46 Cal.2d 818, 836.) Appellant theorized that Sanchezs guilty plea was significant because it indicated she was solely responsible. The People mentioned the guilty plea only in response to this theory, pointing out that it is possible for more than one person to possess contraband. Further, there was overwhelming evidence that the marijuana found by the police was possessed by appellant for the purposes of sale. Appellants principal defense — that the marijuana was not his, but had been brought to his home during a three-day period when he had absented himself during a fight with this wife — was simply not believable. The marijuana was found in the closet of appellants own bedroom. There was a lot of it, seventy pounds, and it is beyond belief that appellant did not smell it, as he claimed. Appellants claim that he was absent from his home for the two or three days between the time he claimed one Augustin Mondragon brought "bags" into his home and the time it was discovered by the police is belied by the fact that he was standing in his front yard on the day the police searched his house. Significantly, appellant fled immediately after his house was searched and did not return for six months, leaving behind his clothes, personal effects, wife and children. He did not reclaim his pickup truck from the police impound yard. Nor did he have a believable explanation for the hundreds of dollars of cash he produced on a Sunday for bail, or the presence of the triple-beam scale on top of his refrigerator or the unused packaging material found in his bedroom. On the other hand, the Peoples experts convincingly testified that the large amounts of cash and drugs and the presence of this kind of scale and packaging material were all indicative of a drug selling operation.
Appellant also argues the trial court erred in admitting evidence of his wifes guilty plea because this evidence made it impossible for the jury to follow CALJIC No. 2.11.5. He further argues that evidence of the guilty plea, in conjunction with the instruction on aiding and abetting, amounted to a trial court directed verdict against him. We do not agree. The trial court did not instruct the jury on the use it might make of the evidence of Sanchezs guilty plea and, therefore, could not be said to have directed a verdict. If anything, CALJIC No. 2.11.5 encouraged the jury to disregard this evidence. Appellant, therefore, has failed to show the required reasonable likelihood that the jury misinterpreted the law in a way potentially unfavorable to the defense. (Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4, Boyde v. California (1990) 494 U.S. 370, 380; People v. Kelly (1992) 1 Cal.4th 495, 526-527.)
The court instructed the jury, pursuant to CALJIC No. 2.11.5 that "There has been evidence in this case indicating that a person other than the defendant was or may have been involved in the crime for which the defendant is on trial. There may be many reasons why that person is not here on trial. Therefore, do not discuss or give any consideration as to why the other person is not being prosecuted in this trial, or whether he or she has been or will be prosecuted. Your duty is to decide whether the People have proved the guilt of the defendant on trial."
B. Ineffective Assistance of Counsel
1. Introduction of Evidence Regarding Possession of Cocaine by Jorge Jordan
Appellant argues that counsels failure to object to the introduction of evidence of three grams of cocaine found in the police car that transported him and Jorge Jordan to the police station constitutes ineffective assistance of counsel. We disagree.
"A defendant seeking to establish the incompetence of trial counsel must show both that counsels performance was deficient and that this deficient performance prejudiced the defendants case. (People v. Mendoza (2000) 24 Cal.4th 130, 158.) In assessing the adequacy of counsels performance, a court must indulge `a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." [Citations.] (Strickland v. Washington (1984) 466 U.S. 668, 689 [Strickland].) If `the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation." (People v. Kipp (1998) 18 Cal.4th 349, 367.)" (People v. McDermott (2002) 28 Cal.4th 946, 988.)
In addition to showing inadequate performance, defendant must also show prejudice flowing from counsels performance or lack thereof. (Strickland, supra, 466 U.S. at pp. 691-692.) "`Prejudice is shown when there is a "reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." [Citations.]" (In re Harris (1993) 5 Cal.4th 813, 833.) "If the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance `unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. [Citations.]" (People v. Mayfield (1997) 14 Cal.4th 668, 784.) If a defendant fails to show that the challenged actions of counsel were prejudicial under this standard, a reviewing court may reject the claim without determining whether counsels performance was deficient. (Id. at pp. 783-784.)
We conclude that counsels failure to object to this evidence was a "sound trial strategy." The cocaine was quite evidently Jordans, rather than appellants, and thus the inference to be drawn from its discovery was that Jordan, rather than appellant, was more likely to be the person in possession of the marijuana. In fact, the discovery of this cocaine led to Jordans arrest. Thus, defense counsel could well have made a reasonable tactical decision that evidence that Jordan, who lived in the house with defendant, was involved in cocaine sales, might suggest that Jordan owned the marijuana rather than appellant. In addition, as we have earlier pointed out, the evidence of appellants guilt was considerable and, even assuming counsel was deficient, the record does not demonstrate the required prejudice.
2. Failure to Challenge Juror No. 2
Before the People called Sanchez as a witness, Juror No. 2 recognized Sanchez as a patient at the clinic where the juror worked. The court asked if this would "affect anything" and the juror said "no." However, after the juror expressed fear for her safety in the workplace, the court excused the other jurors and examined the juror. The juror then went on to express a concern about whether, "whatever the decision the jury made, if guilty or not guilty, I just dont want anything personally for me. Like for example where I work, is he going to use that against me? Thats what Im afraid of."
The court explained to the juror that, should she vote one way or another out of concerns outside of the evidence, that would "become[] a problem for all of us, and it doesnt ensure either side a fair trial. . . . And I want to make sure that thats not going to be an influence for you in any decision that you make individually, which would impact the jury as a whole." The court asked the juror if she could avoid this and the juror responded, "I could. I could. I could do that. I just dont know what effect he will take or she will take in turn for me. Thats where Im afraid. Otherwise I could do, you know, I could use my judgment, or everyones judgment but Im just thinking about me personally." The court asked the juror if she could put that aside and the juror replied, "I could. I could. Its just, my thought is, what are they thinking, after — lets say they go back and say thats the one I saw, but they dont know what decision Ive made, since we made it amongst the group." The court explained that the finding would have to be unanimous one way or the other and the juror said, "But I could put things aside." The court then asked the juror if she could be fair to both sides and she said she could. The prosecutor had no questions or challenges and neither did the defense. The juror was left on the panel.
Although appellant contends trial counsel was ineffective for failing to challenge this juror, the record is clear that the trial court conducted the requisite inquiry to determine whether the juror should have been discharged and properly left her on the panel. (See People v. Ramirez (1990) 50 Cal.3d 1158, 1175.) Juror No. 2 stated she could be fair and impartial, despite her concern about the consequences of her actions. Any objection or challenge would, therefore, have been unavailing. We conclude that no ineffective assistance has been shown.
3. Withdrawal of Speedy Trial Motion
Appellant also takes issue with trial counsels decision to withdraw a motion to dismiss for denial of appellants speedy trial rights. The original felony complaint in this matter was filed on October 10, 1996 and a warrant issued for defendants arrest on January 28, 1997. Ultimately, in August 2001, defendant turned himself into the police. An information was filed on August 15, 2001, and, on August 8, 2002, defendant was found guilty. Appellant alleged in the motion that he received no notice of the pending warrant and, to his knowledge, no attempts were made to locate him. He also alleged that, during this time period, his whereabouts were known by, or easily detectable by government agents and he could have been arrested, but for their inactivity.
We conclude that trial counsel made a reasonable tactical decision to withdraw this motion because it had little chance of succeeding under either the federal or state speedy trial right. As our Supreme Court explained in People v. Martinez (2000) 22 Cal.4th 750, 754, "[t]he state and federal Constitutions both guarantee criminal defendants the right to a speedy trial (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15, cl. 1), and both guarantees operate in state criminal prosecutions [citation] . . . ."
Appellant mistakenly assumes that his federal speedy trial right attached in 1996, when the original felony complaint was filed in this matter. However, this right does not operate until "`either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge . . . ." (People v. Martinez, supra, 22 Cal.4th at p. 755.) Because the formal information in this case was filed on August 15, 2001, and appellants trial began less than a year later, trial counsel reasonably concluded the dismissal motion would not succeed on federal constitutional grounds.
Appellants citation to Serna v. Superior Court (1985) 40 Cal.3d 239 is unavailing. A significant issue in Serna was when the speedy trial right attaches for federal constitutional purposes in a misdemeanor case. The court concluded that the right attaches with the filing of a misdemeanor complaint and went on to find presumptively prejudicial, on federal constitutional grounds, the four and a half year delay between the filing of the misdemeanor complaint and the defendants arrest. This case, however, does not involve a misdemeanor and Martinez definitively establishes that the speedy trial right in a felony proceeding attaches with the filing of the information which, in this case, occurred in August 2001. (People v. Martinez, supra, 22 Cal.4th at p. 763.)
Trial counsel also reasonably concluded that defendant did not have a meritorious claim under the state Constitution. Appellant did not contend that his speedy trial rights were violated under Penal Code section 1382, subdivision (a) (which provides that an action shall be dismissed if a defendant charged with a felony is not brought to trial within 60 days of arraignment on an indictment or information absent any waiver of time). Therefore, in order to prevail, defendant was required to "affirmatively demonstrate that the delay has prejudiced the ability to defend against the charge. [Citation.]" (People v. Martinez, 22 Cal.4th at pp. 765-766.) Appellant failed to demonstrate any actual prejudice from the prearrest delay and, indeed, does not even discuss this issue on appeal. In light of these circumstances, we conclude that trial counsels withdrawal of the motion to dismiss on speedy trial grounds does not constitute ineffective assistance of counsel.
C. Motion for a New Trial
Appellant filed two new trial motions. The first motion was based on allegedly newly discovered exculpatory evidence from Jorge Jordans testimony and a contention that the trial court and the People committed misconduct by wrongly advising Sanchez of her martial privilege. After new counsel substituted in for original trial counsel, a second motion for new trial was filed, incorporating the original motion and alleging additional grounds: namely, ineffective assistance of trial counsel for failing to limit evidence of Jordans cocaine possession and failure to challenge Juror Number 2. The trial court denied the motion on the ground that there was no showing of newly discovered evidence or that a different result was probable. The court also concluded it did not err with regard to Sanchezs marital privilege. Finally the court found that there had not been an adequate showing of ineffective assistance of trial counsel.
Appellant now argues the trial court erred in denying the motion for new trial, incorporating the arguments made on appeal regarding ineffective assistance of counsel and Sanchezs testimony, and incorporating the arguments made in the new trial motion on the other grounds. We conclude that the trial court did not abuse its discretion in denying the new trial motion on any of these grounds.
First, with regard to ineffective assistance of counsel, we have reviewed and rejected this claim. Second, with regard to the argument that the trial court improperly advised Sanchez of the marital privilege, the record is clear that the trial court properly understood and communicated the nature of the marital privilege. Finally, with regard to the allegedly newly discovered testimony of Jorge Jordan, the new trial motion contained no affidavit from Jordan as to what his testimony would be. Although counsel alleged that Jordan would corroborate appellants testimony that he was not occupying his house at the time of his arrest and that he did not know about the marijuana, the trial court did not err in concluding this evidence would not lead to a more favorable result. Appellant has not provided us with any rationale for reaching a contrary conclusion.
In his opening brief, defendant fails to even discuss this testimony, perhaps because it does not justify the granting of a new trial.
D. Cumulative Error
Appellant contends cumulative error in this case rises to the level of reversible and prejudicial error. (People v. Hill (1998) 17 Cal.4th 800, 844.) We disagree. The single error in this matter, the failure to exclude evidence of Sanchezs guilty plea, does not amount to cumulative error because, among other things, it was harmless.
IV. DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Lambden, J,.