People v. Rios

318 Cal.Rptr.3d 461

The PEOPLE, Plaintiff and Respondent,

v.Guadalupe RIOS, Defendant and Appellant.

G061764

Court of Appeal, Fourth District, Division 3.

Filed February 23, 2024

Appeal from a judgment of the Superior Court of Orange County, Robert A. Knox, Judge. Affirmed in part and reversed in part. (Super. Ct. No. 19HF1708)

Correen Ferrentino, Costa Mesa, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

MOORE, J.

[1] Under the Kelly rule, expert testimony based on the application of a new scientific technique is not admissible in a California court unless the proponent of the evidence shows: 1) the reliability of the technique is generally accepted in the relevant scientific community; 2) the expert testifying about the technique is properly qualified as a witness on the subject; and 3) the person who performed the test in the particular case used correct scientific procedures. (People v. Kelly (1976) 17 Cal.3d 24, 30, 130 Cal.Rptr. 144, 549 P.2d 1240 (Kelly).)

A police officer found Guadalupe Rios with suspected methamphetamine and car- isoprodol (Soma) pills. The officer further identified the substances using a presumptive test: a handheld laser device called a TruNare identifier. The prosecution charged Rios with three crimes: possession for sale of methamphetamine, transportation for sale of methamphetamine, and simple possession of carisoprodol.

At trial, Rips challenged the reliability of the TruNare test. In a pretrial hearing, the officer testified the device emits a laser that "excites a bond inside of a molecule. This bond will emit a light that is measurable by the laser. The laser will then analyze the substance, and it stores about 450 substances in its library, and it comes back with an accurate reading of what the substance is." The court allowed the officer’s TruNarc testimony to be admitted at trial. A jury found Rios guilty of the three charged crimes. On appeal, Rios challenges the admission of the TruNarc evidence.

We hold that a laser narcotics identification test is based on a new scientific technique, the prosecution failed to establish its admissibility under the Kelly rule, and therefore it was error to admit the testimony about the TruNarc test at trial.

However, as to Rios’ two methamphetamine convictions (possession for sale and transportation for sale), we find the error was not prejudicial. Because of other compelling evidence, there is not a reasonable probability of a more favorable result had the TruNarc evidence not been admitted at the trial. But as to Rios’ carisoprodol conviction (simple possession), we find the evidentiary error was prejudicial and we reverse that conviction. In all other respects, the judgment is affirmed.

I FACTS AND PROCEDURAL BACKGROUND

At about 8:45 a.m., an Irvine police officer was on patrol in a parking lot in an area known for narcotics activity. The officer watched a woman (later identified as Rios) enter the parking lot in a Lexus SUV. Rios parked the SUV and walked towards a store. The officer got out of his patrol vehicle and looked into the SUV. The officer saw a plastic baggie with white residue in the front passenger doorpocket, just below the window. The officer immediately recognized the white residue as narcotics residue.

The officer returned to his patrol vehicle and watched as Rios eventually returned to her SUV and sat in the driver’s seat. The officer approached and told Rios what he had seen in her vehicle. Rios did not seem surprised. The officer asked Rios if there was anything else illegal in the car. Rios initially said there was not, then she admitted "there was, in fact, methamphetamine in the vehicle." Rios pulled a small green box from the center console and handed it to the officer. The small cardboard box looked like a soap box from a hotel room. Rios told the officer she had just left a hotel.

The officer opened the small box and saw inside "a clear baggie containing a white crystalline substance, which I immediately recognized, due to my training and experience, as methamphetamine." The officer detained Rios outside of the vehicle and later determined the weight of the baggie was 7.4 grams, Other police eventually arrived, and a search of the vehicle was conducted, Three working digital scales were found in the vehicle along with five more identical small green boxes that were all empty.

The officer searched the baggie taken from the passenger door and found 11 white pills. On some of the pills the officer could clearly see "DAN" on one side, and "5513" on the other. Based on his training and experience, the officer believed the pills to be carisoprodol (Soma). The officer verified this by doing a search on a public website used to identify medications, Rios did not have a prescription for the pills.

Police also found a hotel card in Rios’ vehicle. The officer went to the nearby hotel and learned Rios was registered in one of the rooms. The officer went to that room and knocked on the door. A woman came out in the hallway, had a brief discussion with the officer, went back into the room to retrieve her purse, and then left.¹

Later that morning, a hotel employee collected some personal items left in the now vacant room. The employee saw several small clear plastic baggies in the room, and an aluminum beverage can that seemed odd and did not feel right. The employee opened the can and discovered a false compartment. When asked what was inside, she said, "I’m not too familiar with drugs, but it seemed like little rocks or stuff inside. So I proceed to call front desk and call back the [police department]."

The officer returned to the hotel and opened the can with the false compartment. The officer found "two clear plastic baggies, both of which contained a white crystalline substance which I instantly recognized, due to my training and experience, as methamphetamine." The two baggies were later weighed at 19.08 grams, and 2.10 grams. When the officer returned to the station, he used a TruNarc device to test the substances seized from the vehicle and the hotel. The TruNarc laser device indicated, the tested substances were methamphetamine and carisoprodol pills.

Court Proceedings

The prosecution filed an amended information charging Rios with three crimes: possession for sale of methamphetamine, transportation for sale of methamphetamine, and simple possession of carisoprodol.

Prior to a jury trial, Rios made an oral motion challenging the reliability of the TruNarc laser device evidence. In a pretrial hearing, the Irvine police officer testified about how the TruNarc device analyzes suspected controlled substances (the proceedings will be summarized in detail in the discussion section of this opinion). The court ruled the TruNarc evidence was admissible at trial. The jury found Rios guilty of the three charged crimes. The trial court granted Rios three years of formal probation.

II DISCUSSION

Rios claims the trial court erred when it admitted the TruNarc testimony because it was based on a new scientific technique and there was no evidence of the technique’s general acceptance in the scientific community. We agree.

[2, 3] Whether evidence qualifies as a new scientific technique is a pure question of law that we review de novo. (People v. Jackson (2016) 1 Cal.5th 269, 316, 205 Cal. Rptr.3d 386, 376 P.3d 528.) Whether the technique has gained general acceptance in the Relevant scientific community is a mixed question of law and fact. (People v. Davis (2022) 75 Cal.App.5th 694, 712–713, 290 Cal.Rptr.3d 661.)

In this discussion we shall: A) review relevant legal principles regarding the admissibility of new scientific evidence (the Kelly rule); B) summarize the trial court proceedings; and C) analyze the facts as applied to the law.

A. Relevant Legal Principles

[4] The proponent of the evidence has the burden to establish the reliability of a new scientific technique. (Kelly, supra, 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240.) In Kelly, a victim reported receiving several anonymous, threatening phone calls. (Id. at p. 28, 130 Cal.Rptr. 144, 549 P.2d 1240.) Police recorded two threatening phone calls to the victim, and later "obtained a tape recording of defendant’s voice during a telephone call (the control tape)." (Ibid.) A police officer listened to copies of the threatening tapes and the control tape, and determined all of the recordings were made by the same person, based on "spectrographic analysis." (Ibid.) Defendant was charged with extortion. After the police officer testified in a pretrial hearing, "the trial court ruled that voiceprint analysis had attained sufficient scientific approval, and that [the officer’s] testimony identifying defendant as the extortionist was properly admissible." (Id. at p. 29, 130 Cal.Rptr. 144, 549 P.2d 1240.) Defendant was convicted of extortion at trial, but the California Supreme Court reversed, finding the trial court’s admission of the police officer’s testimony about voiceprint analysis was in error, and the error was prejudicial. (Id. at p. 40, 130 Cal.Rptr. 144, 549 P.2d 1240, citing People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243 (Watson).)

Relying primarily on well-established federal law (Frye v. United States (1923) 54 App.D.C. 46, 293 F. 1013 (Frye)), the Supreme Court held the "admissibility of expert testimony based upon the application of a new scientific technique" requires a showing that: 1) the reliability of the technique is generally accepted in the relevant scientific community; 2) the expert testifying about the technique is properly qualified as a witness on the subject; and 3) the person who performed the test in the particular case used correct scientific procedures.² (Kelly, supra, 17 Cal.3d at...