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Filed 10/24/14 P. v. McDaniels CA3

Original opinion filed 7/2/14 vacated on 10/9/14 and opinion re-filed 10/24/14

NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT MCDANIELS,

Defendant and Appellant.

C072707

(Super. Ct. No. 11F05313)

A jury found defendant Robert McDaniels 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 convicted 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 the Penal Code unless otherwise indicated.
2

conviction was alleged as the basis for a prior prison term enhancement. (§ 667.5, subd. 

(b).) 

Defendant was sentenced to prison for three years consecutive to the term he was 

then serving. He moved to strike the prior prison term allegation 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 impose any additional penalty for it. 

On appeal, defendant contends (1) the trial 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 People concede this latter point. We modify 

the judgment.

FACTS

2

On May 19, 2011, defendant was an inmate 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 lying position on the upper bunk 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 object passes from the body. 

 

2 Our statement of facts taken from the prosecution’s case at trial is limited to the 

marijuana offense and does not include possible prison rule violations by defendant.
3

More than four days later, defendant informed Correctional Officer Lofton that he 

needed to make a bowel movement. After defendant defecated into a plastic bag, Officer 

Lofton sorted through the feces and found a small balloon. Inside the balloon she found 

some plastic wrap that contained a green leafy substance. Officer Lofton weighed the 

balloon and separately weighed its contents. 

Officer Hampton transported the evidence to the Sacramento County Crime 

Laboratory for examination. She also transported the evidence to a forensic laboratory 

for testing by the defense. Finally, she transported the evidence to court for presentation 

at trial. 

Tests performed on the substance at the Sacramento County Crime Laboratory 

confirmed that it was marijuana with a net weight of 0.11 grams. The defense testing at

another forensic laboratory, in West Sacramento, was apparently inconclusive. Even so, 

defendant raises no issue of the matter here.

DISCUSSION

I

Limitation of Cross-Examination

Defendant contends the trial 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 maintenance 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 reports 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 Hampton if she remembered the date of the 

search. Examining her report, she stated it was “May 19th, 2011, at approximately 1:30 
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a.m., in the morning.” After establishing that defendant was in cell C-507 on the fifth 

tier, defense counsel asked, “And you stayed there from approximately 1:30 to 

approximately 2:15; is that correct?” Officer 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 introduce a document not previously disclosed to 

the prosecution. Cross-examination was halted and counsels met with the trial court in 

chambers. Following the chambers session and out of the jurors’ presence, the trial court 

summarized the chambers session on the record. 

The trial court noted that Officer Hampton was not involved in the search that 

yielded the marijuana. Her only involvement was shining a flashlight to assist the 

searching officers. Later, Officer Hampton 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 remedies 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 objection” to the cell phone evidence, which the 

court “would have sustained.” 

The trial court explained that the document or “piece of paper in question was 

about a paragraph long, appears to be a report, perhaps, generated by [Officer Hampton], 

regarding a cell search of another cell, of two inmates completely unrelated to this case, 

that the officer indicated began approximately at 2:00 o’clock.” Defense counsel 

“indicated that he wished to cross-examine [Officer Hampton] regarding the possible 

discrepancy, as he described it, between her claim that she was involved in a cell search 

up on the floor involving this defendant versus a -- being involved in a cell search on 

another floor, perhaps, at the same time.” 
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The trial court opined that there was “no necessary discrepancy between the times 

indicated” because “she did not say, nor did she claim under oath, that she stood by, 

stationary, in a single position or within a few 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 defendant’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, and 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 Hampton, who had transported the material, was 

somehow responsible for the different 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 “until five seconds before” questioning Officer 

Hampton was “inappropriate”; (2) questioning 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 confusion or other things”; thus, the report would be excluded 

under Evidence Code section 352. 

Returning to the question of relevance, the 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 disputed that he swallowed a balloon, that he 

excreted a balloon, that a balloon was collected from his body. The dispute is whether or 

not the contents of that balloon contained sufficient or appropriate controlled substance to 

have constituted a crime.” Thus, the defense “efforts 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 questioning Officer Hampton about the timing of 
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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 evidence during the various transportations. Absent such an argument, 

the timing of the cell searches “does not speak to [Officer Hampton’s] credibility, and 

certainly does not speak to any relevant issues in this case.” 

Defense counsel countered that he needed to “attack and give the jury every 

reason [he] possibly [could] to disbelieve what 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 different issue if you are talking about an officer 

that actually makes an observation of something that involves the criminal 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 other 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 testimony 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 court, 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 impeach Officer Hampton with the purported discrepancy 

between her trial testimony that she stayed at cell C-507 from approximately 1:30 to 
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approximately 2:15 or “even longer than that,” and her assertion 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 approximately 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 eschewed any issue of “tampering,” including any claim that 

Officer Hampton was responsible for the different weights measured by the laboratories. 

Thus, although defendant 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 reach an opposite conclusion. 

The trial court properly concluded that, 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 claim the time discrepancy somehow impeaches 

Officer Hampton’s testimony on that issue, and no possible impeachment value appears. 

It follows that the trial court properly excluded the time discrepancy evidence as 

irrelevant to the present case. There 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 such cross-examination based on concerns 
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about, among other things, harassment, prejudice, confusion of the issues, the witness’ 

safety, or interrogation that is repetitive or only marginally relevant.” [Citations.] 

Exclusion of impeaching evidence on collateral matters which 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 102, 119.) Having determined 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 Court 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 did 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 bifurcated jury trial, the prosecution 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, and 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 prosecutor asked the trial court to grant a new trial on the 

allegation and then dismiss it pursuant to section 1385. 
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At sentencing, defendant moved to strike the allegation because the underlying 

prison term had not been completed. Notwithstanding 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 marijuana offense in county jail 

rather than prison if the allegation were stricken. 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 mean a continuous completed period of prison 

incarceration imposed for the particular offense. . . .” “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 imprisonment; 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 “prior separate prison term” as defined in 

section 667.5, and his motion to strike the prior prison term allegation should have been 

granted. 

DISPOSITION

The judgment is modified by striking the prior prison term allegation. As so 

modified, the judgment is affirmed. The trial court is directed to prepare an amended 
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abstract of judgment and to forward a certified copy to the Department of Corrections and 

Rehabilitation.

 NICHOLSON , J.

We concur:

 RAYE , P. J.

 HOCH , J.