People v. Salazar
| Decision Date | 21 July 2011 |
| Docket Number | Santa Clara County Super. Ct. No. C1068320,H035813 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JAVIER SALAZAR, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Javier Salazar was convicted after jury trial of possessing a controlled substance (Health & Saf. Code, § 11350, subd. (a)),1 and being under the influence of a controlled substance (§ 11550, subd. (a); a misdemeanor). The trial court suspended imposition of sentence and placed defendant on Proposition 36 probation for two years with various terms and conditions.
On appeal, defendant contends that: (1) the court prejudicially erred and violated his due process rights by admitting into evidence his audiotaped statements to the police regarding his prior drug use; (2) the court prejudicially erred by misinstructing the jury under section 11550; and (3) the court imposed improper and unconstitutional conditionsof probation. We will modify the judgment relating to some of the ordered conditions of probation and affirm the judgment as so modified.
Defendant was charged by information with possessing Vicodin, a controlled substance (§ 11350, subd. (a); count 1); being under the influence of cocaine, a controlled substance (§ 11550, subd. (a); count 2, a misdemeanor); and possessing 28.5 grams or less of marijuana (§ 11357, subd. (b); count 3, a misdemeanor). The prosecutor moved in limine for admission of evidence of any statements defendant made "at the scene and in the patrol vehicle." The court granted the motion over defendant's objection.
San Jose Police Officer Todd McMahon testified as an expert in the recognition of the signs and symptoms of a person under the influence of a stimulant, and in the recognition of a usable amount of Vicodin, also known as hydrocodone. He testified that, on January 15, 2010, at approximately 6:00 p.m., he was talking to two other officers in the parking lot of a shopping center when defendant ran up to them. Defendant asked the officers to help him enforce a court order. He was agitated and he was unable to stand still after being told to do so, so Officer McMahon pat-searched him. As the officer was speaking to defendant, he began to suspect that defendant was under the influence of a controlled substance due to defendant's agitation, inability to stand still, rapid speech, and fluttering eyelids.
Because Officer McMahon noticed the odor of marijuana, he asked defendant about it. Defendant admitted that he smokes marijuana and he indicated that he had a medical marijuana card. However, defendant's symptoms were not consistent with being under the influence of marijuana. The officer had defendant walk over to another patrol car and perform a "Rhomberg test," where defendant had to estimate the passage of 30 seconds. The officer then checked defendant's pulse and pupil dilation. Based on hisobservations and his training and experience, the officer concluded that defendant was under the influence of a stimulant.
Defendant's car was parked in the parking lot. Officer McMahon had another officer search the car. That officer found 14 pills in a Ziploc baggie, and marijuana, inside the car. Defendant said that the pills were Vicodin, and the officers confirmed this by calling poison control. No labeled pill bottle was found in the car and defendant did not produce a prescription. Officer McMahon arrested defendant and transported him to San Jose's preprocessing center.
Defendant made a series of statements while being transported, which Officer McMahon recorded. A CD copy of defendant's recorded statements was played for the jury. Defendant stated in part: When the officer told defendant that he was also going to be charged with being under the influence of a controlled substance, defendant said:
After a urine sample was obtained from defendant at the preprocessing center, and defendant waived his Miranda rights,2 Officer McMahon interviewed him and recorded the interview. A CD copy of the recorded interview was played for the jury. During the interview, defendant said that he was trying to pick up his daughters for a visitation when the mother of his daughters called the police. Defendant asked if the urine sample [¶] . . . He said that "[a] couple days ago,"
The parties stipulated that
Trevor Gillis, a criminalist with the Santa Clara County Crime Laboratory, testified as an expert in the effects of stimulants on the human body and on solid substance analysis of controlled substances. He testified that cocaine is a stimulant. It causes an increased heart rate, increased breathing, increased body temperature, rapid speech, agitation, paranoia, racing thought patterns, and fine muscle tremors. A person can feel the intoxicating effects of cocaine for between a few minutes to an hour, and cocaine is detectible in a urine sample for six to 12 hours. The presence of BE in a urinesample indicates that cocaine had been ingested sometime within the previous 72 hours of when the sample was taken.
Gillis conducted the solid substance analysis of the pills in this case. The pills each contained five milligrams of hydrocodone bitartrate and five milligrams of acetaminophen, which is the combination in a generic form of Vicodin. Vicodin is a controlled substance used generally for pain control. It is a depressant; it slows down breathing and heart rate, it can cause somebody to be cold and clammy and sleepy, and it can cause very constricted pupils.
Defendant's friend Nicole Marie Hessling testified that she sustained a broken back in a car accident on September 30, 2009. A doctor prescribed a generic form of Vicodin for her pain. After purchasing the Vicodin, she put the pills in a plastic bag and always carried about 15 to 20 pills with her. Defendant allowed her to borrow his car in December 2009 and January 2010, and she left a bag of Vicodin in the driver's side door of the car when she returned the car to him on January 3rd or 4th.
Defendant testified on his own behalf that he had just left work when the incident at issue happened. He contacted his former girlfriend in an attempt to see his daughters and then headed for her apartment. When he saw his girlfriend drive into a parking lot where there were police officers, he followed her. He got out of his car and contacted the officers. Officer McMahon immediately told him to put his hands on his head and then searched him. The officer told him that he was high on marijuana. When defendant said that he had a cannabis card, the officer said that he was under the influence of a stimulant. The officer asked him questions and moved him. He was handcuffed and placed in the back of a patrol car and his car was searched. He did not know that the Vicodin pills were in his car, but he told the officer that the pills were his because he was not sure if they belonged to Hessling. He admitted that he had used a line of cocaine two days before because he was not feeling the intoxicating effects of the cocaine at that timeand he was trying to be completely honest. He did not remember what time he used the cocaine, but the party he had attended started at 4:00 p.m., and his use was at "some time throughout that evening." He also truthfully said that he had tried several other drugs when he was a teenager. However, he was lying when he said that the Vicodin pills were his and that the...
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