People v. Valenzuela CA5

Filed 2/9/16 P. v. Valenzuela CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F069488 Plaintiff and Respondent, (Super. Ct. No. DF011167A) v.

OMAR VALENZUELA, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. John S. Somers, Judge.

Michael L. Pinkerton, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

*Before Kane, Acting P.J., Peña, J. and Smith, J.

INTRODUCTION Appellant Omar Valenzuela was convicted of possession for sale of heroin (Health & Saf. Code, § 11351) and possession of controlled substances where prisoners are in custody (Pen. Code,1 § 4573.6). In a court trial it also was found true that he had two prior strike convictions. During the People’s case-in-chief, Valenzuela brought a motion for mistrial, which was denied. Valenzuela contends the trial court abused its discretion in denying his mistrial motion and the judgment should be reversed. We disagree and affirm. FACTUAL AND PROCEDURAL SUMMARY On October 7, 2012, Correctional Officer Estevan Becerra was assigned to contraband surveillance watch. Valenzuela, one of the inmates Becerra was watching at Kern Valley State Prison, informed the officer he needed to defecate. Valenzuela defecated into a porta potty and Becerra examined the bowel movement. Becerra observed a blue balloon and upon closer inspection, saw the balloon contained three smaller bindles. One bindle had the mark “XX” on the exterior. The bindles appeared to contain marijuana and heroin. Lab analysis determined the three bindles contained 4.09 grams of marijuana, 16.97 grams of heroin, and the bindle marked XX had 7.11 grams of heroin. Correctional Sergeant Jerome Peacock investigated drug trafficking in the prison as part of his duties. In his experience, drugs brought into the prison were packaged in bindles and sometimes the bindles were inside latex balloons. A common method of distributing drugs inside the prison was for a “mule,” a person who transported drugs, to swallow them or secrete them inside his rectum. After retrieving the drugs from his body, the mule would then give them to the intended recipient. Peacock opined the bindles recovered from Valenzuela that contained heroin had a value of about $9,600; the marijuana recovered had a value of around $400. The amount