THE PEOPLE v. ANNETTE HABERMAN (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Annette P. Haberman appeals her conviction by jury of possession for sale of methamphetamine.  (Health & Saf.Code, § 11378.)   During the trial, appellant admitted, inter alia, six prior drug convictions.  (Health & Saf.Code, § 11370.2, subd. (c).)  The trial court sentenced appellant to 12 years state prison and awarded 80 days actual custody and 40 days conduct credit.¹  We conclude that appellant is entitled to an additional 40 days conduct credit based on recent amendments to Penal Code section 4019 and affirm the judgment as modified.

Facts and Procedural History

On July 29, 2008, Redondo Beach Police Department detectives conducted surveillance of a Torrance residence in connection with a burglary investigation.   Appellant and her boyfriend, Russell Roach, lived in the house.   Detectives Eric Cahalan and Michael Green observed a GMC Denali drive up and park just north of the residence.   The driver, Frank Camacho, was talking on a cell phone.

Patricia Morton drove up in a black Isuzu talking on a cell phone.   Camacho made a hand motion as if he wanted Morton to pull over.   The detectives believed Camacho was a burglary suspect.

A minute or so later, appellant came out of the house carrying a purse and backpack.   Appellant walked up to the passenger window of the Denali, leaned on the windowsill, and spoke to Camacho.   Detective Cahalan approached, identified himself, and asked if Camacho had anything illegal in the vehicle.   Camacho consented to a search of the Denali.

Detective Green instructed appellant to sit on the curb and ordered Camacho to get out of the Denali.   Detective Green conducted a pat-down and found a glass pipe in Camacho's left front pocket and a small baggie containing .14 grams of methamphetamine.   Camacho was handcuffed and ordered to sit on the curb next to appellant.

Detective Cahalan confirmed that appellant was on parole with search terms.   Inside appellant's purse, the detective found a glass pipe to smoke methamphetamine, 23 small baggies, a baggie with marijuana leaves printed on it, and two black baggies with a gold skull design.   He also saw a black baggie with a gold skull design on the ground next to the passenger door where appellant had been standing.   The baggie contained 1.47 grams of methamphetamine and looked like it had been stomped into the ground.   Four $20 bills were on the Denali passenger seat.

Detective Green searched the vehicle, during which time Russell Roach came out of the residence.   He was ordered to sit on the curb next to Camacho and appellant.

Appellant and Camacho were arrested and had $258 and $18.46, respectively, in cash on their persons.   Sergeant Shawn Freeman, a narcotics expert, opined that the black baggie of methamphetamine on the ground was possessed for sale.   Sergeant Freeman stated that 1.47 grams of methamphetamine would sell for $80 and that the baggies with the designs and the smaller baggies were typically used by methamphetamine sellers.   The sheer number of baggies in appellant's purse, 26 baggies in all, was indicative of drug sales.

Appellant testified that she was on parole and no longer sold drugs.   Camacho, however, called several times to buy drugs.   Appellant told him “No” and left the house to go to drug counseling with Morton who was waiting outside.   Appellant saw Camacho parked in the street, approached the passenger window of the Denali, and told him to leave.   She claimed that Camacho gave her a package to throw away.   Appellant put the package in her purse just as the officers drove up.   Appellant was ordered to sit on the curb and did not see anything fall out of the Denali when Detective Green opened the passenger door to search the vehicle.

Russell Roach testified that he saw Detective Green open the passenger door and something fell to the ground.   Roach heard the detective say, “Oh, look what we have here” and “It looks like somebody tried to smash this into the floorboard of the truck.”

On rebuttal, Detective Green testified that Roach had not arrived on the scene when the detective found the baggie on the ground.

It was stipulated that appellant was convicted of possession of a controlled substance for sale (Health & Saf.Code, § 11378) in 1997, 2002, and 2009, and that on June 27, 1997 appellant was convicted of manufacturing a synthetic drug (Health & Saf.Code, § 11379.6, subd. (a)), possession for manufacturing methamphetamine or PCP (Health & Saf.Code, § 11383, subd. (c)), and possession for sale of a controlled substance (Health & Saf.Code, § 11378).

Prosecutorial Misconduct:  Cross-Examination of Roach

Appellant contends that the prosecutor engaged in misconduct in cross-examining Roach.   After Roach testified that he saw Detective Green open the passenger door and saw the baggie fall on the ground, the prosecutor asked why Roach did not report the information sooner.   Roach admitting saying nothing when appellant (Roach's girlfriend) was arrested.  “I wanted to give a statement to Mr. Kim [defense counsel], but he was busy in trial cases.”   The prosecutor asked if Roach went to the preliminary hearing and testified.   Roach was also asked why he failed to contact law enforcement and “tell them you saw a baggie fall out of the car․  “ Appellant objected on relevance and foundation grounds but the objections were overruled.

After the prosecution finished its cross-examination, appellant moved for mistrial.   The trial court did not believe there was prosecutorial misconduct but indicated that it would strike Roach's answers.   Appellant withdrew her motion for mistrial and “motion alleging prosecutorial misconduct” and requested an opportunity “to lead Mr. Roach on some questions relating to preliminary hearing, his decision not to come to court, his conversations with me [defense counsel] about scheduling to meet and be interviewed in this case.”

Citing Evidence Code section 352, the trial court struck the questions and testimony relating to Roach's “appearance, knowledge of, or testifying at the preliminary hearing.”   The jury was admonished not to consider or speculate why Roach did or did not appear at the preliminary hearing or testify at the hearing.

Appellant asserts that the cross-examination was improper and denied her a fair trial.   We disagree.  “[T]he fact a witness is aware of potentially exculpatory nature of facts but fails to reveal that evidence to the authorities before trial is relevant to the witness's credibility.   While there may be no legal obligation to come forward, it is so natural to do so that the failure to promptly present that evidence makes suspect its later presentation at trial.”  (People v. Tauber (1996) 49 Cal.App.4th 518, 524-525, fn. omitted.)

In People v. Conover (1966) 243 Cal.App.2d 38, the prosecutor told the jury that defendant decided not to call a witness at the preliminary hearing because the witness was a liar.  (Id., at pp. 43-48.)   The prosecutor accused the defendant of suborning perjury and told the jury that he personally believed appellant was guilty and would not have prosecuted defendant if he was innocent.  (Id., at pp. 49-50.)   The Court of Appeal reversed on the ground that the misconduct was egregious, occurred several times in opening and closing statements, and was part of a sustained and pervasive plan.  (Id., at p. 54.)  “In view of the condition of the evidence, there was grave doubt as to defendant's guilt.   We think that the several acts of misconduct were ‘such as to contribute materially to the verdict’ [citation] and that therefore defendant did not have a fair trial.  [Citation.]”  (Ibid.)

Unlike Conover, the prosecutor did not argue that defendant had suborned perjury or that Roach was a liar.   The prosecutor asked why Roach did not come forward earlier or testify at the preliminary hearing.   The trial court struck the testimony and admonished the jury that the questions and answers “are not to be considered by you for any purpose in this trial.  [¶] ․ [¶] There are numerous reasons why a defense witness would not appear at or testify at a preliminary hearing.   You are not to consider or speculate for any purpose as to why Mr. Roach did or did not appear at such preliminary hearing or did or did not testify at such hearing.”

Appellant, for tactical reasons, withdrew her motion for mistrial, and attempted to rehabilitate Roach.   On redirect, Roach explained why he did not disclose the information sooner, denied lying on cross-examination, and said that he saw something fall out of the vehicle when the officer opened the passenger door.

Appellant waived any claim of prosecutorial misconduct.  (People v. Farnam (2002) 28 Cal.4th 107, 167.)   Waiver aside, appellant makes no showing that she was denied a fair trial or that the jury admonition failed to cure the harm.   (People v. Earp (1999) 20 Cal.4th 826, 858.)   The questions were brief and asked in good faith to determine Roach's credibility.  “No witness including a defendant who elects to testify in h[er] own behalf is entitled to a false aura of veracity.”  (People v. Beagle (1972) 6 Cal.3d 441, 453.)

Based on the context of the questions, we cannot say the cross-examination was so egregious or reprehensible as to constitute prosecutorial misconduct under state law or federal constitutional law.  (People v. Abilez (2007) 41 Cal.4th 472, 494.)  “We presume the jury followed the court's detailed instructions regarding this matter and conclude that, in light of the instructions, there is no reasonable likelihood that the jury was misled by the prosecutor's improper question[s].  [Citation.]   Accordingly, no prejudice is shown.”  (People v. Smithey (1999) 20 Cal.4th 936, 961.)

Cross-Examination of Appellant

Appellant testified that she would “never” sell drugs in front of her house while on parole.   Appellant said that if she were to sell drugs, “I would either go to a hotel, get a hotel room, and do a deal” or use “runners.”   On cross-examination, appellant admitted that she was on parole in 2002.   The prosecutor asked, “in 2002 you were selling drugs out of that same exact house and location.   Isn't that true?”   Appellant responded, “No.”

The trial court struck the answer on the ground that counsel had informally agreed that the details of appellant's prior convictions were not relevant.   (Evid.Code, § 352.)

Appellant contends that the prosecutor committed misconduct and was disrespectful.²  Appellant, however did not object on the basis of prosecutorial misconduct.   Nor did she request a curative admonition.   This forfeits the claim.  (People v. Abilez, supra, 41 Cal.4th at p. 493.)   On the merits, we reject the argument that the incident rendered the trial fundamentally unfair or prejudiced appellant.  (People v. Harrison (2005) 35 Cal.4th 208, 242.)   The jury was instructed that the statements and questions of counsel were not evidence (CALCRIM 222) and that “you alone must judge the credibility or believability of the witnesses.”  (CALCRIM 226.)   The jury also received CALCRIM 316 which states:  “If you find that a witness has been convicted of a felony, you may consider that fact only in evaluating the credibility of the witness's testimony.   The fact of a conviction does not necessarily destroy or impair a witness's credibility.   It is up to you to decide the weight of that fact and whether that fact makes the witness less believable.  [¶] The defendant has admitted all of the prior convictions as alleged in this case.   Do not consider the defendant's prior convictions as evidence or proof that the defendant committed any of the crimes with which she is currently charged.”

It is presumed that the jury understood and followed the instructions.   (People v. Mayfield (1993) 5 Cal.4th 142, 179.)   We conclude that the instructions adequately protected appellant from any unfair and improper inferences of bad character or criminal propensity.  (See e.g., People v. Catlin (2001) 26 Cal.4th 81, 147.)

Appellant asserts that it was a close case and notes that Detective Green vacillated on some of his testimony.   The evidence of appellant's guilt was overwhelming.   Officers found four $20 bills on the front passenger seat, a black baggie of methamphetamine on the ground, and a glass pipe and baggies in appellant's purse.   The black baggies had a distinctive gold skull design as did the baggie on the ground.   The drug expert testified that the baggie of methamphetamine would have sold for $80 and the baggies in the purse were typically used in methamphetamine sales.

Roach's testimony that he saw the baggie fall to the ground during the vehicle search was contradicted by Detective Green and appellant.   Detective Green found the baggie before Roach came out of the house and before the Denali was searched.   Appellant was seated on the curb next to Roach, did not see anything fall out of the vehicle, and was “100 percent sure” she saw Detective Green open the passenger door.

The alleged instances of prosecutorial misconduct, whether considered individually or cumulatively, were harmless and did not deny appellant a fair trial.  (People v. Cook (2006) 39 Cal.4th 566, 608.)   Nor has appellant shown, under state law, that it is reasonably probable that appellant would have obtained a more favorable result had the misconduct not occurred.   (People v. Crew (2003) 31 Cal.4th 822, 839.)

Presentence Conduct Credits

Appellant asserts that she is entitled to 40 additional days conduct credit based on statutory amendments to Penal Code section 4019 that went into effect on January 25, 2010 after she was sentenced.  Section 4019, as amended, provides that certain defendants may earn presentence conduct credit at the rate of two days for every two days in custody.  (Stats.2009-2010, 3d Ex.Sess.2009, c. 28, § 50.)

Absent a saving clause, legislative enactments that mitigate punishment are traditionally deemed to operate retroactively.  (See In re Estrada (1965) 63 Cal.2d 740, 748.)   Following this tradition, the majority of courts that have considered the issue have determined that amendment to section 4019 is subject to Estrada because it reduces the amount of time eligible defendants have to spend in prison.  (People v. Keating (June 7, 2010, B210240) _ Cal.App.4th _ [2010 DJDAR 8428];  People v. Pelayo (2010) 184 Cal.App.4th 481;  People v. Norton (2010) 184 Cal.App.4th 408;  People v. Landon (2010) 183 Cal.App.4th 1096 [review granted June 23, 2010, 107 Cal.Rptr.3d 847], but see People v. Hopkins (2010) 184 Cal.App.4th 615 [§ 4019 should not apply retroactively to defendants who have already served their time in custody];  People v. Otuban (2010) 184 Cal.App.4th 422 [same].)

Although the Supreme Court has granted review on the issue and will have the final say on the matter (see People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963;  People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808), we agree with the reasoning expressed by the courts in the majority and hold that Penal Code section 4019 as amended applies to cases pending on appeal.   Pursuant to section 4019, the sentence is modified to award an additional 40 days presentence custody credit.

Conclusion

NOT TO BE PUBLISHED.

We concur:

Superior Court County of Los Angeles

Julia J. Spikes, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven E. Mercer, Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.

FOOTNOTES

FN1. Appellant received a three-year high term on the principle offense (Health & Saf.Code, § 11378) plus nine years on three prior drug conviction enhancements (§ 11370.2, subd. (c)).  The remaining enhancements were dismissed.  (Pen.Code, § 1385.).  FN1. Appellant received a three-year high term on the principle offense (Health & Saf.Code, § 11378) plus nine years on three prior drug conviction enhancements (§ 11370.2, subd. (c)).  The remaining enhancements were dismissed.  (Pen.Code, § 1385.)

FN2. The prosecutor laughed when appellant testified that she took the package from Camacho without looking at it.   Defense counsel stated:  “I don't mind the prosecutor asking questions.   Can we ask her not to laugh and be disrespectful[?]  I object on her demeanor when she's asking the witness questions.”After the trial court conducted an unreported sidebar conference, cross-examination resumed without further objection or incident.   At the conclusion of the trial, defense counsel stated that “the trial was contentious, but it was very professional.”.  FN2. The prosecutor laughed when appellant testified that she took the package from Camacho without looking at it.   Defense counsel stated:  “I don't mind the prosecutor asking questions.   Can we ask her not to laugh and be disrespectful[?]  I object on her demeanor when she's asking the witness questions.”After the trial court conducted an unreported sidebar conference, cross-examination resumed without further objection or incident.   At the conclusion of the trial, defense counsel stated that “the trial was contentious, but it was very professional.”

COFFEE, J. PERREN, J. Alan B. Honeycutt, Judge