Filed 8/20/20 P. v. Perez CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

ANDREW REY PEREZ,

 Defendant and Appellant.

2d Crim. No. B299287

(Super. Ct. No. 18F-11425)

(San Luis Obispo County)

A jury found Andrew Rey Perez guilty of possession for sale 

of heroin (Health & Saf. Code, § 11351) and possession for sale of 

alprazolam (Xanax) (Health & Saf. Code, § 11378). The trial 

court suspended imposition of sentence, and placed Perez on 

three years’ formal probation. We affirm. 

FACTS

Perez had been involved in a dispute with Michael Daniloff. 

Perez accused Daniloff of pistol-whipping him and taking $1,800. 

Thereafter, shots were fired at Daniloff’s house.

The day after the shooting, Daniloff’s aunt, Diana 

Ballesteros, went to Perez’s house to ask him to stop shooting 
2

into Daniloff’s house. During the meeting, Perez became angry 

and complained that Ballesteros did not have Perez’s gun, a 

subject that Ballesteros knew nothing about. Perez slammed a 

bag of heroin on the table and said, “Here . . . Where’s my piece?” 

Ballesteros did not know what he was talking about. Perez 

pointed an assault rifle at Ballesteros’s head. She left Perez’s 

house and called the police. The police arrested Perez that night. 

The next day, the police executed a search warrant on 

Perez’s mother’s house. Perez had been living there since 

Thanksgiving. His mother rented a room to a tenant, whom she 

had not seen since December 6. The police were searching for the 

assault rifle and evidence of narcotic sales. 

Detective Steve Boyett of the Paso Robles Police

Department conducted the search. In the laundry room, he found 

a black plastic tote. Inside the tote he found 52.27 grams of 

heroin, two functioning digital scales with heroin residue on 

them, several unused baggies, a spoon with heroin on it, a tablet 

computer, and some male clothing. The laundry room was 

accessible to everyone in the house. Heroin is often sold in 0.1 

gram doses, so the 52.27 grams would make 522 individual sales. 

Boyett also found 100 whole and 13 partial Xanax pills inside the 

tote. The pills were green, rectangular, and had “S903” printed 

on them. He did not find a prescription. 

When Perez was arrested, the police searched him before 

transporting him to the police station. They searched him again 

at the station. When they transported him to the jail, the 

correctional staff searched him again. Perez was placed in a 

holding cell at the jail. 

The jail had eight holding cells. Only one arrestee occupied 

a cell. There were surveillance cameras in the area. Deputy 
3

Nataly Beltran was working as a corrections officer in the holding 

cell area. 

A surveillance video of Perez using the toilet in the holding 

cell was shown to the jury. Beltran testified there is a partition 

in front of the toilet that blocks a view of the person’s private 

parts. All that is visible is the person’s hands and legs. 

Perez pulled down his pants and sat on the toilet. His 

hands were constantly in and out of his pants. He threw 

something on the floor, and then looked around. Beltran said 

Perez was “on the toilet for a while.” 

After Perez was removed, Beltran conducted a search of the 

cell. She found next to the toilet near the back wall of the cell a 

plastic baggie containing greenish-blue bar-shaped pills with 

“S903” imprinted on them. Laboratory tests showed the pills 

were Xanax. Beltran also found in front of the toilet a black felt 

bag covered with toilet paper. The bag was empty. 

DEFENSE

Perez elected to stand on the People’s evidence. 

DISCUSSION

I.

Surveillance Video

Perez contends the trial court erred in admitting the 

surveillance video showing an uncharged crime. 

(a) Relevance

Perez argues the surveillance video was irrelevant. 

Evidence is relevant if it has any tendency in reason to prove a 

disputed fact that is of consequence to the determination of the 

action. (Evid. Code, § 210.) Evidence Code, section 1101, 

subdivision (b) allows evidence of an uncharged crime when 
4

relevant to prove some fact other than the defendant’s disposition 

to commit such an act. 

Here the prosecution had the burden of proving that Perez 

possessed the drugs found in his mother’s house. The drugs were 

found in a laundry room accessible to all members of the 

household, including a tenant. The video showed Perez on the 

toilet, searching through his pants and dropping something on 

the floor. After Perez left the cell, a deputy found beside the 

toilet a plastic baggie containing the same type of pill found in his 

mother’s house. The evidence had a tendency in reason to prove 

Perez possessed the drugs found in his mother’s house. 

Perez points out that in its closing argument, the 

prosecution conceded other inmates used the holding cell and 

that there is a possibility that the pills were dropped by another 

inmate. But that goes to the weight of the evidence, not its 

admissibility. (See People v. Wharton (1991) 53 Cal.3d 522, 597 

[existence of contrary inferences goes to weight of evidence, not 

admissibility].) 

(b) Evidence Code section 352

Evidence Code section 352 gives the trial court the 

discretion to exclude evidence if its probative value is 

substantially outweighed by the probability that its admission 

will require an undue consumption of time or create substantial 

danger of undue prejudice, confusing the issues, or of misleading 

the jury.

Perez objected that the probative value of the video 

evidence is substantially outweighed by the danger of undue 

prejudice. 

Undue prejudice refers not to evidence that proves guilt, 

but to evidence that prompts an emotional reaction against the 
5

defendant and tends to cause the trier of fact to decide the case 

on an improper basis. (People v. Walker (2006) 139 Cal.App.4th 

782, 806.) All evidence that tends to prove guilt is prejudicial to 

the defendant’s case; the stronger the evidence, the more 

prejudicial. (Ibid.)

Here, the video shows Perez discarding something in the 

area of the toilet where a baggie was found containing pills 

similar to those found in his mother’s house. That is highly 

probative evidence that Perez possessed the pills found in his 

mother’s house. 

Perez argues the video of him using the toilet is 

humiliating. But only his hands and feet are visible. Moreover, 

simply using the toilet is not by itself prejudicial. It is something 

everybody does. What is prejudicial is that the video shows Perez 

dropping something in the area where the pills were found. It is 

prejudicial in that it tends to prove his guilt. But it is not unduly 

prejudicial. It does not tend to cause the jury to decide the case 

on an improper basis. 

Perez also claims that the video was prejudicial because it 

deprived him of the benefit of wearing nice clothes at trial. But 

Perez forfeited the objection by failing to raise it at trial. (People 

v. Taylor (1982) 31 Cal.3d 488, 495.) Moreover, he was wearing 

his own clothes in the video, not jail garb.

Perez also argues that the evidence is cumulative and 

resulted in an undue consumption of time. Perez fails to point 

out where in the record he raised such objections at trial. In any 

event, the argument has no merit. 

Perez’s argument that the video evidence is cumulative is 

based on the premise that the evidence was admitted to show 

Perez possessed the pills in his mother’s house for sale. But it 
6

was admitted to show Perez, and not someone else in his mother’s 

house, possessed the pills. The evidence was not cumulative.

Nor did the evidence require an undue consumption of 

time. The prosecution had the burden of proving possession. The 

video and related evidence were an essential part of the 

prosecution’s case. It did not unduly consume time. 

(c) Limiting instruction 

Perez argues the trial court had a sua sponte duty to give a 

limiting instruction on the use of the evidence. Ordinarily the

court has no sua sponte duty to instruct on the admissibility or 

use of other crimes evidence. (People v. Cottone (2013) 57 Cal.4th 

269, 293.) Perez cites People v. Collie (1981) 30 Cal.3d 43, 64 for 

the proposition that the trial court has a sua sponte duty to give 

such a limiting instruction in the extraordinary case where the 

evidence is both highly prejudicial and minimally relevant to any 

legitimate purpose. Here the evidence was highly prejudicial in 

that it tends to prove guilt, but for the same reason it is not 

minimally relevant to any legitimate purpose.

II.

Refusal to Declare a Mistrial

Perez contends the trial court erred in refusing to grant a 

mistrial based on the prosecutor’s violation of Doyle v. Ohio

(1976) 426 U.S. 610 (Doyle). 

Background

On direct examination, Detective Steve Boyett testified 

that he advised Perez of his rights pursuant to Miranda v. 

Arizona (1966) 384 U.S. 436 (Miranda). Then Boyett invited 

Perez to make a statement. The prosecutor asked Boyett, “In 

response to your invitation to get Mr. Perez to give a statement, 

what, if anything, did he say?” Boyett replied, “I believe he told 
7

me he didn’t want to speak to me without a lawyer.” Boyett said 

he terminated his efforts to get information from Perez. 

The trial court immediately called a recess. Defense 

counsel asked for a mistrial. He stated that a jury instruction 

would not cure the error. The prosecutor stated that he asked 

the question because Detective Boyett testified at the preliminary 

hearing that Perez made a statement after he was advised of his 

Miranda rights. The prosecutor did not expect Boyett would 

testify any differently at trial. 

The trial court stated that it read the preliminary hearing 

transcript, and that a reasonable person might not have 

anticipated the response Boyett gave at trial. The court found 

that the prosecutor did not intentionally elicit evidence of Perez’s 

refusal to talk. The court denied Perez’s motion for a mistrial. It 

concluded a curative instruction would suffice. At Perez’s 

request, the court delayed a curative instruction to the end of 

trial.

Discussion

In Doyle, the Supreme Court held that it violates due 

process for a prosecutor to impeach a defendant with his silence 

after the defendant had been advised of his right to remain silent. 

(Doyle v. Ohio, supra, 426 U.S. at p. 619.) There are two 

essential components of a Doyle violation: (1) the prosecution 

must make use of a defendant’s post-arrest silence for 

impeachment purposes, either by questioning or in closing 

argument, and (2) the trial court permits that use. (People v. 

Evans (1994) 25 Cal.App.4th 358, 368.) 

Here, neither component of a Doyle violation is present. 

The prosecutor did not use Perez’s silence for impeachment 

purposes, either by questioning or by comment in closing 
8

argument. Nor did the trial court permit that use. It called an

immediate recess and gave a curative instruction.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J.

PERREN, J.
Timothy S. Covello, Judge

Superior Court County of San Luis Obispo

______________________________

Mi Kim, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, David E. Madeo and Kathy S. Pomerantz, 

Deputy Attorneys General, for Plaintiff and Respondent.