1 Filed 7/2/14 P. v. McDaniels CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT (Sacramento)

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THE PEOPLE, Plaintiff and Respondent,

v. ROBERT MCDANIELS, Defendant and Appellant. C072707 (Super. Ct. No. 11F05313)

A jury found defendant Robert McDani els guilty of possessing marijuana in a penal institution. (Pen. Code, § 4573.6, subd. (a).) 1 In a bifurcated proceeding, the jury found true an allegation defendant “was convict ed of the crime of first degree murder in violation of . . . section 187 on April 11, 2001.” In the amended information, this

1 Further statutory references are to th e Penal Code unless otherwise indicated.2 conviction was alleged as the basis for a prio r prison term enhancement. (§ 667.5, subd. (b).) Defendant was sentenced to prison for th ree years consecutive to the term he was then serving. He moved to strike the pr ior prison term allegati on because he had not “completed” the “period of prison incarceration imposed for” the murder and, in fact, was in custody for it at the time of the present offense. (§ 667. 5, subd. (g).) The trial court
declined to strike the allegation but also declined to impo se any additional penalty for it. On appeal, defendant contends (1) the tria l court erred when it limited his right to cross-examine and impeach Officer Hampton, a percipient witness; and (2) the prior prison term allegation must be stricken; the Pe ople concede this latter point. We modify the judgment.
FACTS 2 On May 19, 2011, defendant was an in mate at Folsom State Prison serving a sentence for first degree murder. At 1:30 a. m., correctional officers Carrillo and Guzman approached the cell containing defendant and another inmate. Correctional Officer Hampton provided light from her flashlight as the other officers entered the cell. As the duo entered, defendant rose up from his lyin g position on the upper b unk bed, reached to a shelf at the rear of the cell, grabbed an object, and stuck it in his mouth. Officer Guzman ordered him to spit out whatever he had put in his mouth. Defendant opened his mouth and Officer Guzman noted that it was empty. Defendant was handcuffed, escorted to an administrative segregation unit, and placed on contraband surveillance watch -- an around the clock observation that continues until the ingested obj ect passes from the body.

2 Our statement of facts taken from the pros ecution’s case at trial is limited to the marijuana offense and does not include possibl e prison rule violations by defendant.3 More than four days later, defendant info rmed Correctional Officer Lofton that he
needed to make a bowel movement. After defe ndant defecated into a plastic bag, Officer Lofton sorted through the feces and found a sm all balloon. Inside the balloon she found some plastic wrap that contained a green le afy substance. Officer Lofton weighed the balloon and separately weighed its contents. Officer Hampton transported the evid ence to the Sacramento County Crime Laboratory for examination. She also transported the eviden ce to a forensic laboratory for testing by the defense. Finally, she tran sported the evidence to court for presentation
at trial. Tests performed on the substance at th e Sacramento County Crime Laboratory confirmed that it was marijuana with a net weig ht of 0.11 grams. Th e defense testing at another forensic laboratory, in West Sacramen to, was apparently inco nclusive. Even so,
defendant raises no issue of the matter here.
DISCUSSION
I Limitation of Cross-Examination
Defendant contends the tria l court erred when it limited his right to cross-examine and impeach Officer Hampton, whom he terms a “percipient witness.” He claims further
cross-examination “could have revealed other defects in her credibility, knowledge, and recollection, perhaps as it relates to her mainte nance of the evidence’s chain of custody.” We disagree.
A. Background Officer Hampton was the prosecution’s first witness at trial. Defendant sought to impeach her based on a time discrepancy in re ports that appeared to put Officer Hampton in two places within the prison cell block at or near the same time. In his crossexamination, defense counsel asked Officer Ha mpton if she remember ed the date of the search. Examining her report, she stated it was “May 19th, 2011, at approximately 1:304 a.m., in the morning.” After establishing th at defendant was in ce ll C-507 on the fifth tier, defense counsel asked, “And you st ayed there from approximately 1:30 to approximately 2:15; is that correct?” Office r Hampton answered, “I believe I was there even longer than that. 2:15 is the time that I discovered the cell phone and charger in cell
number 7.” Defense counsel later sought to introduc e a document not previously disclosed to the prosecution. Cross-examination was halted and counsels met with the trial court in chambers. Following the chambe rs session and out of the jurors’ presence, the trial court
summarized the chambers se ssion on the record. The trial court noted that Officer Hampto n was not involved in the search that yielded the marijuana. Her only involvemen t was shining a flashlight to assist the searching officers. Later, Officer Hampto n entered the cell and discovered a cellular telephone, another item of contraband. In the court’s view, “the finding of the cell phone, the fact of the cell phone, any administrative re medies that occurred as a result of that piece of contraband, are completely irrelevant to the issues in this case.” The court was “surprised that there was not a relevance obje ction” to the cell phone evidence, which the
court “would have sustained.” The trial court explained that the docum ent or “piece of paper in question was about a paragraph long, appears to be a repor t, perhaps, generated by [Officer Hampton], regarding a cell search of another cell, of tw o inmates completely unrelated to this case, that the officer indicated began approximat ely at 2:00 o’clock.” Defense counsel
“indicated that he wished to cross-examin e [Officer Hampton] regarding the possible discrepancy, as he described it, between her claim that she was invo lved in a cell search up on the floor involving this defendant vers us a -- being involved in a cell search on another floor, perhaps, at the same time.”5 The trial court opined that there was “ no necessary discrepancy between the times indicated” because “she did not say, nor di d she claim under oath , that she stood by, stationary, in a single position or within a fe w feet within a particular time period.”
The trial court next established that the timing of Officer Hampton’s activities (other than holding the flashlight) was not relevant to defenda nt’s possession of marijuana. The court noted there was no dispute that Officers Carrillo and Guzman observed defendant swallow a balloon, a balloon emerged from defendant’s body, correctional officers collected the balloon, an d the substance in the balloon was weighed at the county crime laboratory as well as the West Sacramento forensic laboratory. The defense was not claiming that Officer Hampt on, who had transported the material, was somehow responsible for the di fferent weights measured by the two laboratories. After establishing these facts, the trial court ruled as follows: (1) the defense’s failure to provide discovery of the report “u ntil five seconds before” questioning Officer Hampton was “inappropriate”; (2) questioni ng Officer Hampton about her search of
another cell “at or near the same time that this cell search occurred” is “not relevant”; and (3) even if the questioning was relevant, its probative value would be “far outweighed” by “the possibility of confusio n or other things”; thus, the report would be excluded
under Evidence Code section 352. Returning to the question of relevance, th e trial court explained that the evidence “simply has no bearing, none, on the issue in this case, which is , ‘Did the defendant possess contraband?’ Apparently, it is not dis puted that he swallowed a balloon, that he excreted a balloon, that a ball oon was collected from his body. The dispute is whether or
not the contents of that balloon contained su fficient or appropriate controlled substance to have constituted a crime.” Thus, the defense “e fforts to raise side issues of this variety are not appropriate.” After defense counsel responded to the trial court’s concern about the discovery violation, the trial court reiterated that que stioning Officer Hampto n about the timing of6 another cell search is “not relevant to any issues at issue in this case.” The court reiterated that the defense was not making an argument that Officer Hampton somehow tampered with the evid ence during the various transportations. Absent such an argument, the timing of the cell searches “does not sp eak to [Officer Hampton’s] credibility, and certainly does not speak to any rele vant issues in this case.”
Defense counsel countered that he need ed to “attack and gi ve the jury every reason [he] possibly [could] to disbelieve wh at has been presented to them.” Counsel understood that the trial court may rule, “ ‘Hey , this is not relevant,’ ” and he respected that. The court responded, “it may be a differe nt issue if you are talking about an officer that actually makes an observation of somethi ng that involves the cr iminal act in this
case. This officer had no such observation. This officer, basically, took the marijuana from a locker, to the crime lab and the [West Sacramento forensics laboratory used by the defense]. That’s all she did. And anything else ot her than holding a flashlight, she is not really involved in this case.”
B. Analysis “Cross-examination may be employed to elicit any information that may tend to overcome, qualify, or explain the te stimony given by a witness on direct examination [citation] as well as to test his accuracy , recollection, knowledge or credibility. [Citation.]” ( People v. Butler (1967) 65 Cal.2d 569, 575, overruled on other grounds in People v. Demetrulias (2006) 39 Cal.4th 1, 22.) But “ ‘[t]he control of cross-examination
is within the discretion of the trial cour t, permitting it to curtail cross-examination relating to matters already covered or irrelevant.’ ” ( People v. Panah (2005) 35 Cal 4th 395, 483, quoting People v. Kronemyer (1987) 189 Cal.App. 3d 314, 352; see People v.
Watson (1956) 46 Cal. 2d 818, 827; People v. Whitehead (1952) 113 Cal.App.2d 43, 48.) Defendant sought to im peach Officer Hampton with the purported discrepancy between her trial testimony that she stayed at cell C-507 from approximately 1:30 to7 approximately 2:15 or “even l onger than that,” and her asser tion in the document that her search of an unrelated cell “began approximately at 2:00 o’clock.”
Defendant claims the trial court abused its discretion by “determining the value and weight” of the claimed discrepancy even though that is “solely the dominion of the jury.” (Evid. Code, § 312, subd. (a).) We assume for present purposes that jurors reasonably could view the approx imately 15-minute discrepancy as some reason to discount Officer Hampton’s trial testimony; we do not resolve that issue ourselves. But this begs the question of which testimony would be discounted. Defendant speculates that “trial counsel’s further examination of Officer Hampton
could have revealed other defects in her credibility, knowledge, and recollection, perhaps as it relates to her maintenance of the evidence’s chain of custody .” (Italics added.) But at the hearing defendant esch ewed any issue of “tampering,” including any claim that Officer Hampton was responsible for the differe nt weights measured by the laboratories. Thus, although defendan t sought to admit the time discrepancy evidence, he never
claimed it could be relevant to the weight discrepancy or any other chain of custody issue. The trial court had no duty to re ach an opposite conclusion. The trial court properly concluded th at, aside from maintaining the chain of custody, Officer Hampton’s role in this case was limited to “holding a flashlight” for her
fellow officers. Defendant does not clai m the time discrepancy somehow impeaches Officer Hampton’s testimony on that issue, a nd no possible impeachment value appears. It follows that the trial court properly excluded the time disc repancy evidence as irrelevant to the present case. Th ere was no abuse of discretion. ( People v. Panah,

supra, 35 Cal 4th at pp. 483-484.)
This leaves defendant’s claim that the trial court’s rulings violated his confrontation rights. The claim has no merit. “ ‘ “[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on su ch cross-examination based on concerns8 about, among other things, harassment, prejudi ce, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” [Citations.] Exclusion of impeaching eviden ce on collateral matters whic h has only slight probative value on the issue of veracity does not infringe on the defendant’s right of confrontation.’ [Citations.] Ordinarily, proper application of the statutory rules of evidence does not impermissibly infringe upon a defendant’s due process rights. [Citations.]” ( People v.
Ardoin (2011) 196 Cal.App.4th 1 02, 119.) Having determin ed that the trial court complied with relevant statutory rules of evidence, we conclude it did not violate defendant’s confrontation rights.
II Prior Prison Term Allegation Defendant contends, and the People agree, the prior prison term allegation must be stricken because defendant’s prison term has not yet concluded.
A. Background The amended information alleged that on April 11, 2001, defendant had been convicted in the Alameda County Superior C ourt of first degree murder and “that a term
was served as described in Penal Code Section 667.5 for said offense, and that he did not remain free of prison custody for, and di d commit an offense resulting in a felony conviction during, a period of five years subsequent to the conclusion of said term.” (Italics added.) At the bifurc ated jury trial, the prosec ution presented testimony from a deputy district attorney that defendant “was sent to State Prison following the [murder] conviction to serve a 25 years to life term, a nd he’s been in prison ever since.” The prosecutor later filed a Statement in Aggravation that stated in relevant part the prior prison term allegation was unfounded and should not have been charged in the amended information. The pr osecutor asked the trial cour t to grant a new trial on the allegation and then dismiss it pursuant to section 1385.9 At sentencing, defendant moved to stri ke the allegation because the underlying prison term had not been completed. Notwith standing his prior admission, the prosecutor objected to dismissal of the allegation on the ground that, per his understanding of section 1170, defendant might serve his sentence for the present mar ijuana offense in county jail rather than prison if the allegation were stri cken. The trial court refused to strike the allegation but declined to impose the one year penalty for the enhancement.
B. Analysis Section 667.5, subdivision (g) states in relevant part: “A prior separate prison term for the purposes of this section shall me an a continuous completed period of prison incarceration imposed for the particular offe nse. . . .” “Imposition of a sentence
enhancement under Penal Code section 667.5 requires proof that the defendant: (1) was previously convicted of a felony ; (2) was imprisoned as a result of that conviction; (3) completed that term of im prisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction. [Citation.]” ( People v. Tenner (1993) 6 Cal.4th 559, 563.) In this case, defendant did not serve a “p rior separate prison term” as defined in section 667.5, and his motion to strike the pr ior prison term allegation should have been granted.
DISPOSITION The judgment is modified by striking th e prior prison term allegation. As so modified, the judgment is affirmed. The tria l court is directed to prepare an amended10 abstract of judgment and to forward a certif ied copy to the Department of Corrections and
Rehabilitation.

NICHOLSON , J.

We concur:

RAYE , P. J.

HOCH , J.