People v. Nieves CA1/1

Filed 8/5/14 P. v. Nieves CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A138955 v. SAMUEL NIEVES, (Alameda County Super. Ct. No. CH53267) Defendant and Appellant.

Defendant Samuel Nieves was convicted of being under the influence of a controlled substance and possession of a controlled substance after he was found behaving suspiciously with a hydrocodone pill in his pocket. During voir dire, the prosecutor made several statements about punishment. Defendant contends these statements constituted prosecutorial misconduct and seeks a new trial on the possession charge.1 Because we find defendant’s challenge waived and the prosecutor’s statements harmless, we affirm. I. BACKGROUND Defendant was charged in an information, filed January 22, 2013, with possession of hydrocodone (Health & Saf. Code, § 11350, subd. (a)) and being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a).) During voir dire at trial, a prospective juror expressed the view that drug sentences are too harsh. The prosecutor told the juror drug offenders in defendant’s position have

1 Defendant admits there is “strong evidence of guilt for being under the influence of methamphetamine” and only appeals the possession conviction. 1

the option to obtain treatment instead of going to trial, stating “this is a straight-up possession” charge. The prosecutor also told the jury the instant case was “not a three- strikes case.” In both instances, defense counsel promptly objected without specifying grounds or asking for an admonition. The court sustained both objections, telling the parties to “Please move on,” after the first objection and commenting after the second, “Please stay away from other issues.” Defense counsel did not ask the court to strike the prosecutor’s statements or instruct the jury to disregard them. During a break in the proceedings, defense counsel moved for a mistrial based on the prosecutor’s statements, arguing they belittled defendant’s choice to exercise his right to a jury trial and would lead the jury to think defendant was wasting their time. The court found the statements improper, but it concluded they did not “poison” the jury or “rise to the level of violating [defendant’s] constitutional due process rights to a fair trial” and denied the motion. The jury heard evidence that late on the night of April 14, 2012, Hayward Police Sergeant Jeff Snell noticed defendant peering through a car window in the parking lot of a closed car dealership. Snell approached defendant and asked what he was doing. He noticed defendant was nervous, moving erratically, speaking loudly and rapidly, and sweating profusely. Defendant was also making strange statements, and his tongue was covered in a white film. Believing defendant was likely under the influence of a central nervous system stimulant, Snell performed a field sobriety test for stimulants. During the test, Snell noticed defendant’s eyelids fluttering, also consistent with being under the influence of a stimulant. Based on the results of the field sobriety tests, Snell arrested and searched defendant. In defendant’s pants pocket, Snell found a small black cardboard box containing one white pill marked “Watson 349” inside a plastic cigarette wrapper. Snell did not find a doctor’s note, prescription pill bottle, or prescription on defendant’s person or in his property. Snell then took defendant to the Hayward Police Station where his urine tested positive for methamphetamine and the pill tested positive for hydrocodone.