In a separate case, he also faced felony charges for transportation and possession of a controlled substance per Yolo County’s practice of double-charging possession of drugs as both possession and transportation.
This time however, Mr. Valdivia was acquitted on both charges. So now, the defense will ask for the lower term of two years of prison for the initial conviction, and the DA’s Office not only lost the second trial but wasted court time and resources and taxpayer money to do so. Given the state of the budget and the court’s packed schedule, this appears a questionable decision, particularly in light of the acquittal.
According to the prosecution’s opening statement, the West Sacramento Police on the night of June 22, 2010, stopped a cab in which Jose Valdivia was a passenger. They arrested him for violating a restraining order. The restraining order was erroneous, having expired, but the arrest, at least according to the prosecution, was not in question since the police acted in good faith that there was a restraining order.
The police would then search the cab and find nothing. They let the cab driver go. However, later the cab driver called the West Sacramento Police Department to report that he had found a bag containing a white powdery substance in his car, which would later test as 14.9 grams of cocaine.
According to Officer Markus of the West Sacramento Police Department, Mr. Valdivia gave a statement that he called a cab at 8 pm and went to a strip club in Sacramento. He said he did not know where the cocaine came from and that he had not used in a few days.
However, Mr. Valdivia had withdrawn $4000 from his bank account and had roughly $1600 on him when he was arrested. He told police he spent the difference on beer and strippers, but also admitted that he had previously been on a coke binge and had bought $400 to $500 worth of cocaine but had used it all several days before.
Under cross-examination, Officer Markus acknowledged that Mr. Valdivia was blood-tested but there was no finding in the police report that he was under the influence of drugs or alcohol. While they found an unopened six-pack of beer on Mr. Valdivia, the Officer did not believe Mr. Valdivia to be under the influence.
When questioned about how they could have missed the drugs during a search, Officer Markus testified that both he and fellow Police Officer Schmitt are “competent and thorough” and not lazy. He testified that he believed that they had performed a thorough search.
The cab driver testified that two officers search the cab following the arrest. He testified that when there is no one in the front seat, the front seat stays forward so that the customer in the back has more room. According to his testimony, Mr. Valdivia never moved the seats.
The police never searched the cab driver, and he was let go after ten minutes following Mr. Valdivia’s arrest. He drove to his home in Sacramento and upon parking, he slid the seat back to normal position. It was then that he saw the bag of cocaine by the door.
He then called the West Sacramento Police Department and drove the bag of cocaine to the police station. The officer took the bag and placed it in the car and then took photos. To his knowledge, only he and the officer touched the bag.
According to West Sacramento Patrol Supervisor Jason Fortier, if a person is arrested during the traffic stop, it is normal for the police officer to search the vehicle, every portion of the vehicle.
According to Josh Spatola, a Criminologist from the Department of Justice, Mr. Valdivia tested positive for cocaine.
Natasha Strickner, who is a Forensic Toxicologist, testified that cocaine stays in the body for 9 hours. However she performed a GCMS (Gas chromatograph mass spectrometer) test, which came up negative for cocaine.
She did not perform the ELIZA (enzyme-linked immunosorbent assay) test that came up positive for metabolytes. Her testimony on the ELIZA results were ruled inadmissible by Judge David Rosenberg, because she did not do the test. The DA on the case, Sean King, erred. Apparently on the sheet he received telling him the test results of both tests, there was only Dr. Strickner’s signature, and so he thought she conducted both tests.
Moreover, out of the presence of the jury, the defense argued that the DA cannot argue that the $1600 that Mr. Valdivia had when arrested was being used for drug-related actions because the DA had already dropped the asset forfeiture aspect to the case for lack of evidence. Judge Rosenberg agreed.
In closing, the DA argued that there was simply no other reasonable explanation for the cocaine being in the car.
However, the defense countered that there was neither direct nor indirect evidence that the cocaine belonged to Mr. Valdivia.
Nobody testified that Mr. Valdivia was using drugs or appeared to be under the influence. There were no fingerprints taken from the bag. The cab driver did not see Mr. Valdivia hide anything.
There were two competent officers who performed the search and the seat being forward or back explains why the cab driver did not see the bag, but does not explain why the officers searching the vehicle did not see it.
In his rebuttal, Mr. King tried to counter that the officers may not have been as vigilant because they were arresting someone for violating a restraining order, not being a drug mule.
A few comments here. Deputy DA Sean King is probably correct that the likely explanation for the cocaine being in the car is Mr. Valdivia. After all, we would either have to believe that the cab driver planted the evidence or another passenger had left it there. We know that Mr. Valdivia had done cocaine in recent days, at least based on his statement to police.
The problem is that there is no evidence actually tying the bag to Mr. Valdivia and the jury would have to overlook a comedy of errors, both by the police who missed the drugs and by the DA’s Office who botched some of the handling of the drug tests to make them inadmissible. In the end, it appears that the jury was not about to reward sloppy work by the authorities and take a leap of faith.
Sadly, this all could have been avoided had the DA’s Office simply cut the deal from the start and avoided using court resources for this trial where the evidence was, quite simply, lacking.
This is a case where we know what probably happened, but it could not be proved and thus the jury did the right thing.
Moreover, Mr. King’s explanation for the officer’s dereliction of duty with the search is absurd. The reason why they perform searches when there are arrests or traffic stops of people on probation is to catch other crimes that might have otherwise gone unnoticed. It is thus appalling that the police would fail to find drugs that were apparently in rather plain view. And it is equally appalling that the DA’s Office would attempt to excuse this failure by the police.
—David M. Greenwald reporting