THE PEOPLE v. CHRISTOPHER DAN WILLIAMS (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant, Christopher Dan Williams, appeals from his conviction of two felony narcotics offenses.   He contends that the trial court abused its discretion and deprived him of due process by allowing impeachment with a prior similar conviction.   In addition, appellant challenges jury instruction CALCRIM No. 300, claiming that it contradicts the standard burden of proof instruction.   Appellant also contends that the trial court should have granted his motion for a mistrial, made after the prosecution elicited testimony that the Sheriff's Department had received complaints of narcotic sales in the area where appellant was arrested.   Finally, appellant requests a review of the trial court's in camera review conducted after the court had granted his Pitchess motion, in part.¹

We find no abuse of discretion in the use of a prior similar conviction for impeachment, or in the denial of appellant's motion for mistrial, and we conclude that CALCRIM No. 300 is a correct statement of law.   We have reviewed the transcript of the trial court's in camera Pitchess review, and conclude that its discretion was properly exercised.   We thus affirm the judgment.

BACKGROUND

1. Procedural Background

Appellant was charged by felony information with a violation of Health and Safety Code section 11352, sale, transportation, or offer to sell a controlled substance (count 1), and a violation of Health and Safety Code section 11351.5, possession for sale of cocaine base (count 2).   The information further alleged, for purposes of Penal Code sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i), that appellant had suffered a prior conviction of a serious or violent felony.   The information also alleged prior felony convictions for purposes of the sentencing enhancement provisions of Health and Safety Code section 11370.2, subdivision (a), and Penal Code section 667.5, subdivision (b);  and for purposes of the probation ineligibility provisions of Health and Safety Code section 11370, subdivisions (a) and (c).

Appellant brought a pretrial Pitchess motion.   The trial court granted an in camera hearing only as to complaints against Detective Joseph Carrillo, and ordered the appearance of the Los Angeles Sheriff's Department's custodian of records.   After conducting the in camera hearing, the court found no discoverable material, and did not enter a turn-over order.

The jury returned verdicts of guilty on both counts as charged.   Appellant agreed to be sentenced to the high term on count 1, waived a jury trial on the alleged prior felony convictions, and admitted to the court that he had suffered three felony convictions, one in 2007, another in 1999, and the third in 2000.   On April 14, 2009, the trial court sentenced him to the high term of five years on count 1, enhanced by three years for the 2007 prior conviction, pursuant to Health and Safety Code section 11370.2, and by one year for the 1999 prior conviction, pursuant to Penal Code section 667.5, subdivision (b).  The court ordered the enhancements to run consecutively, and suspended imposition of sentence as to count 2.

Appellant filed a timely notice of appeal.

2. The Prosecution Evidence

At trial, Detective Carrillo testified that on April 17, he and a surveillance team were conducting an investigation on the 1500 block of 101st Street in Los Angeles.²  He explained that people knew to come to this location to purchase the drugs.   At approximately 8:30 p.m., he saw appellant standing in front of an apartment complex, and as he watched, several individuals walked up to appellant at separate times.   After appellant engaged each in conversation, he walked away a short distance to a planter near some mailboxes and a shrub or bush, knelt slightly, reached down, walked back, and made an exchange with the person.   Two of the people approached appellant on foot, while two arrived in cars.   Detective Carrillo's surveillance lasted a little over an hour, during which he saw appellant engage in six transactions.   Four of the exchanges took place within a 20 to 30 minute time period.

Detective Carrillo could not hear any of the conversations, until a truck arrived and the driver came very close to where he was parked.   The man approached the vacant building at 1531 101st Street and knocked on the back door.   Getting no response, he walked back onto the sidewalk next to the detective's vehicle, where appellant said, “What do you need?”   After a short conversation, appellant walked back to the planter, retrieved something, and returned.   Appellant handed him a white object, and the man handed appellant money.   The man drove away, Detective Carrillo alerted the surveillance team, and Deputies Santino Saavedra and Erik Harris followed the truck in their patrol car.

Detective Carrillo heard part of another conversation between appellant and a woman, while she sat in a car.   He heard appellant ask her what she needed, and after she said something, appellant walked to the planter, came back, there was an exchange, and he said, “Hey, if you need anything, this place is hot over here.   Just come see me, and we're here at the apartment all the time.”   Detective Carrillo testified that he heard appellant say something to the effect that she needed a “20,” and explained that 20 was a measure of rock cocaine, for which one paid $20.

No drug paraphernalia was found on appellant's person when he was arrested, and he had only $30 on him.   Detective Carrillo was of the opinion that appellant was selling narcotics, in part because appellant was not carrying paraphernalia for using drugs.   Appellant's having just $30 did not change his opinion, because dealers gave credit, or hid the proceeds.   Detective Carrillo did not see appellant engage in any record-keeping activity, either written or by cell phone use, but lost sight of him for about 20 seconds during the surveillance, when appellant walked to the north side of the street and went behind a wrought iron gate.   Detective Carrillo then saw appellant gesturing as though speaking to someone behind the gate, but he could not see anyone.   After appellant was arrested, deputies recovered a package from the planter or the bush.

Detective Carrillo concluded that appellant did not possess cocaine for his own use.   He testified that users of rock cocaine smoked it in a glass pipe that normally produced a bright flame, and that they typically had a diminished, disheveled, or “bald” appearance.   He saw no flame, did not see appellant smoke, and appellant showed no other signs of rock cocaine use.

Detective Carrillo testified regarding his expertise in recognizing cocaine, and identified the package as containing sixteen $20 rocks of cocaine.³  This was a large amount of cocaine, as users usually possessed only one or two rocks at a time.   Detective Carrillo concluded from this fact that the rocks in this package were for sale.   Later, Deputy Harris showed him the rock cocaine found in the truck that he had followed.   It looked similar to the rocks found in the planter, and was similarly packaged.

Deputy Harris also testified.   While assigned to a narcotics crew the day of appellant's arrest, he and his partner were notified by the surveillance team that the person driving a burgundy-colored pickup truck had possibly made a narcotics purchase, and he was directed to stop the truck and contact the occupant.   As soon as he activated the lights on the patrol car, the driver of the truck made a gesture toward the center of the bench seat.   When Deputy Harris asked the driver why he had reached toward the center of the seat, the driver's reply led the deputies to arrest him.   Deputy Harris then searched the truck, and found the item later identified as rock cocaine.

Deputy Harris returned to the location where appellant had been detained.   He found a cell phone on appellant, and booked it into evidence.

3. Defense Evidence

In his defense, appellant called Deputy Saavedra, who was a patrol deputy and Deputy Harris's partner on the evening of appellant's arrest.   He arrested the driver of the burgundy-colored pickup truck, Errol Walker, and watched as Deputy Harris retrieved from the cab of the truck what was later identified as rock cocaine.

Appellant testified on his own behalf that he belonged to a car club, and that on the evening he was arrested, he had just attended a club meeting at 1421 West 101st Street.   Appellant was very familiar with the area, having been born and raised about two blocks away.   He claimed that at the time the deputies observed him, an acquaintance struck up a conversation with him, lasting about 20 minutes, and as other car club members were leaving in their cars, two of them pulled over about 10 minutes apart to ask him questions.

Appellant claimed that he had used his cell phone to call a taxi to take him to the motel where he was going to meet one of his girlfriends.   He had planned a birthday party for her, but did not intend to go to the party, because it was a “naughty girl party,” with many women, some strippers, and “a couple of male friends.”   Appellant asked the girlfriend to come to court, but as he was no longer on friendly terms with her, she did not appear.   He had paid cash for the motel room, and produced a receipt from the motel, dated April 17.   The receipt contained his signature, California identification number, and birth date.

Denying that he had been exchanging anything with people before his arrest, appellant claimed that he had merely spoken to other car club members who approached him to ask where the party for his girlfriend would be held.   He told them, and then shook their hands.   He denied that he went to the bush to retrieve drugs from a bag, and testified that he did not see anyone else doing so.   However, he had been unable to contact the person with whom he had the 20 minute conversation.   He had seen him a few times in the neighborhood, but did not know him well enough to know how to contact him.   Although there were at least six people at his car club meeting, and some were supposed to testify, they did not come to court, and appellant did not know why.   Appellant had gone to the meeting with Sean Mobley, who was not going to the party.   Although appellant knew how to reach him, he did not call him.

One of the friends was Al, whom he had known for years.   Al was supposed to testify, but he did not come to court.   The other was Stan Schruby, who refused to testify without a subpoena, because he worked.   Appellant testified that Stan drove up while he was talking to the acquaintance mentioned earlier, and Al pulled up about 10 minutes after that.

Appellant denied that he saw a burgundy-colored truck.   He claimed that he walked over to the area of 1531 101st Street because his acquaintance had called him over.   Appellant also denied that he had spoken to two women, claiming that male friends had offered him a ride.   Later, appellant testified that only one of them offered him a ride, although both wanted to know the location of the party.   Appellant claimed that he had been waiting for a cab for approximately 10 to 15 minutes, when a patrol car pulled up, and the deputies harassed him.   They searched him, and as they placed him in their car, they directed him to take off his shoes and socks, while making a comment about his stinking feet.

Appellant admitted that he had been convicted on July 31, 2000, of being a felon in possession of a firearm, a felony.   He explained that he pled guilty “because I was guilty.”   Appellant also admitted that on March 29, 2007, he had been convicted of possessing cocaine base for sale, also a felony.   Again, he explained that he pled guilty because he was guilty.   He denied that he was under the influence of any narcotics the day of his arrest.

DISCUSSION

1. The Court's Refusal to Sanitize Impeachment Prior

Appellant contends that he was denied due process under the United States Constitution by the trial court's refusal to grant his request to “sanitize” his 2007 felony conviction, as a condition to the prosecutor's use of the conviction to impeach his testimony.

Prior to jury selection, defense counsel asked the trial court to rule that the prosecution could ask only whether appellant had suffered the conviction of a felony involving moral turpitude, not whether he had been convicted of possession for sale of rock cocaine.   He argued that it would be similar to character evidence to prove conduct on a particular occasion, as prohibited by Evidence Code section 1101.   The court replied, “That's the baggage he comes with,” and after hearing the argument of counsel, denied the motion.   The court ruled that the prosecution could impeach with both of appellant's prior felony convictions.   Appellant admitted the prior convictions during his direct examination.⁴

a. Standard of Review

Appellant acknowledges that the court's refusal to sanitize the prior conviction is reviewed for an abuse of discretion.  (See People v. Hinton (2006) 37 Cal.4th 839, 887-888.)

Article I, section 28, subdivision (f), of the California Constitution provides in relevant part that “[a]ny prior felony conviction ․ shall subsequently be used without limitation for purposes of impeachment.”   When this provision was enacted by Proposition 8, it was “not intended to abrogate the traditional and inherent power of the trial court to control the admission of evidence by the exercise of discretion to exclude marginally relevant but prejudicial matter-as, indeed, is provided by Evidence Code section 352.”   (People v. Castro (1985) 38 Cal.3d 301, 306.)   An exercise of discretion under Evidence Code section 352 “ ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.   [Citations.]’  [Citation.]”  (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)

The trial court has broad discretion to allow impeachment of the defendant with prior convictions of crimes identical to the current offense.  (People v. Dillingham (1986) 186 Cal.App.3d 688, 695;  see People v. Stewart (1985) 171 Cal.App.3d 59, 66.)   We uphold the court's discretion unless it exceeded the bounds of reason.  (People v. Stewart, supra, at p. 65.)

b. No Abuse of Discretion

The similarity of the prior conviction to the current offense is a factor favoring exclusion.  (People v. Dillingham, supra, 186 Cal.App.3d at p. 695.)   It is, however, just one factor to consider;  those that favor allowing such impeachment include a finding that the prior crime is probative of the defendant's dishonesty, that the prior conviction was not remote in time, and that it did not prevent the defendant from taking the stand.  (See People v. Mendoza (2000) 78 Cal.App.4th 918, 925-926;  People v. Ballard (1993) 13 Cal.App.4th 687, 697-698.)

Such factors are present here.   Possession of narcotics with the intent to sell them is a crime of moral turpitude, and thus probative of appellant's dishonesty.  (See People v. Harris (2005) 37 Cal.4th 310, 337.)   The conviction was not remote in time, but occurred just one year prior to appellant's commission of the instant crimes.   Finally, it did not prevent appellant from taking the stand to testify.

Appellant suggests that because the prosecutor had available his conviction in 2000 of felon in possession of a firearm, he should have been limited to impeaching with that prior.   We cannot find an abuse of discretion.   Impeachment with more than two prior convictions is not unusual, and multiple convictions are more probative then one.  (People v. Mendoza, supra, 78 Cal.App.4th at p. 927.)   Further, more recent prior convictions have greater probative value than remote convictions.  (People v. Beagle (1972) 6 Cal.3d 441, 454.)

We conclude that the trial court did not act arbitrarily, capriciously or in a patently absurd manner.  (See People v. Rodrigues, supra, 8 Cal.4th at p. 1124.)   Thus, the trial court properly exercised its discretion, and did not exceed the bounds of reason.  (See People v. Stewart, supra, 171 Cal.App.3d at p. 65.)

c. No Due Process Violation

Appellant contends that the trial court did not engage in weighing the probative value of the similar prior conviction against its probable prejudice as required by Evidence Code section 352, and that this omission amounted to a denial of due process under the federal Constitution.

A trial court's exercise of discretion under Evidence Code section 352 does not infringe upon a defendant's right to due process, unless it results in the exclusion of evidence vital to his defense.  (People v. Cornwell (2005) 37 Cal.4th 50, 82, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

Appellant makes no such showing, but cites Old Chief v. United States (1997) 519 U.S. 172 (Old Chief ), to suggest that a failure to engage in a weighing process under these circumstances is a violation of the Fourteenth Amendment to the federal Constitution.  Old Chief did not so hold, but merely construed the federal equivalent of Evidence Code section 352, Rule 403 of the Federal Rules of Evidence, as requiring the trial court to allow a defendant charged with being a felon in possession of a firearm to stipulate to felon status in the appropriate case.  (Old Chief, supra, at pp.   191-192.)

In any event, we do not agree that the trial court failed to engage in weighing the probative value against probable prejudice as required by Evidence Code section 352.   That process need not be expressly articulated on the record, so long as the record affirmatively shows that the trial court weighed prejudice against probative value;  and that showing may be inferred from the record.  (People v. Prince (2007) 40 Cal.4th 1179, 1237.)   Here, the inquiry began, not ended, as appellant contends, with the court's remark, “That's the baggage he comes with.”   The court heard the argument of counsel, including defense counsel's suggestion that the prosecution be limited to using the nonsanitized 2000 conviction of felon in possession of a firearm.   The court then denied the motion, but heard further argument on appellant's other prior convictions, finding one of them, “pretty inflammatory.”   The court then ruled that both the 2000 conviction and the 2007 conviction “would come in.”   We infer from this argument and comment that the court did, in fact, engage in the required weighing process.

Because the trial court did not err in exercising its discretion under Evidence Code section 352, there could be no violation of appellant's federal due process right.  (See People v. Abilez (2007) 41 Cal.4th 472, 503.)

2. No Error in giving CALCRIM No. 300

Appellant contends that the jury instruction, CALCRIM No. 300, erroneously contradicts the standard burden of proof instruction that a defendant has no burden to present evidence or prove anything.   CALCRIM No. 300 reads:  “Neither side is required to call all witnesses who may have information about the case or to produce all physical evidence that might be relevant.”

We apply a de novo standard of review in determining whether an instruction correctly states the law.  (People v. Posey (2004) 32 Cal.4th 193, 218.)   “We ․ examine the instructions to determine whether this law was correctly conveyed to the jury.   Once we have ascertained the relevant law, we determine the meaning of the instructions in this regard.   Here, the question is whether there is a ‘reasonable likelihood’ that the jury understood the charge as the defendant asserts.  [Citations.]”  (People v. Kelly (1992) 1 Cal.4th 495, 525.)   In determining whether there is a “ ‘reasonable likelihood,’ ” we consider not only the language of the instruction, but the entire charge to the jury.  (Ibid.)

Similar language has been held to be a correct statement of law.  (See People v. Wein (1958) 50 Cal.2d 383, 402-403, overruled on another point in People v. Daniels (1969) 71 Cal.2d 1119, 1140.)   More recently, several appellate courts have held that CALCRIM No. 300 correctly states the law.   (People v. Golde (2008) 163 Cal.App.4th 101, 117;  People v. Ibarra (2007) 156 Cal.App.4th 1174, 1189-1190;  People v. Anderson (2007) 152 Cal.App.4th 919, 937-938.)

Appellant's assertion that we should not follow these recent authorities, because the courts relied on People v. Simms (1970) 10 Cal.App.3d 299 (Simms ), is without merit.   Citing People v. Wein, supra, 50 Cal.2d 383, and other cases, the court concluded that the language of the instruction (then CALJIC No. 2.11) was a correct statement of law.  (Simms, supra, at p. 313.)   Like the defendant in Simms, appellant has not provided authority holding that either side is required to call all witnesses or produce all relevant physical evidence.

Appellant also contends that because the court refused to instruct the jury that he had no burden to produce evidence, defense counsel was placed in the position of having to argue that the prosecutor's comments on the failure to bring in witnesses was an attempt to shift his burden of proof.   As respondent notes, however, appellant did produce evidence, making such an instruction inapplicable.   Once a defendant presents evidence, it is subject to critical examination and comment regarding the failure to call logical witnesses, among other things.  (People v. Chatman (2006) 38 Cal.4th 344, 403.)   The prosecutor may “comment upon a defendant's failure ‘to introduce material evidence or to call logical witnesses․' ”  (People v. Wash (1993) 6 Cal.4th 215, 263.)

We conclude that the trial court did not err in reading CALCRIM No. 300 to the jury in this case.

3. Motion for Mistrial

Prior to trial, defense counsel moved to exclude evidence of citizen complaints about narcotic sales at the apartment complex near where appellant was arrested, and the motion was granted.   When asked to explain what had happened the night of appellant's arrest, Detective Carrillo testified that the Sheriff's Department had received complaints that narcotic sales were taking place.   The trial court interrupted Detective Carrillo, and said, “I'm going to strike that.   Complaints about other things would be hearsay.   So the jury will disregard that.”

Appellant then made his motion for a mistrial, and the trial court heard argument outside the jury's presence.   The prosecutor told the court that he had warned Detective Carrillo not to mention the complaints.   However, Detective Carrillo did not remember this, although he remembered that the prosecutor had told him not to testify about several other things.   The court found that the testimony was unintentional, and denied the motion for that reason, and for the additional reason that the trial was also serving as a probation violation hearing.   The court explained that it wished to hear all the evidence in relation to the alleged violation, and to determine whether Detective Carrillo's testimony was prejudicial (“a big deal”).

Appellant contends that the trial court erred in denying his motion for a mistrial, because the court did not sufficiently admonish the jury.  “A trial court should grant a mistrial only when a party's chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial.   [Citation.]”  (People v. Bolden (2002) 29 Cal.4th 515, 555.)

There is no merit to appellant's argument, and he is in no position to complain of the lack of additional admonishment.   The trial court offered to give a more thorough admonishment, including a statement that the prosecution had been told not to go into this subject, and it gave appellant the option to establish that the citizen complaints did not involve him.   Not wanting to “highlight” Detective Carrillo's comment, defense counsel declined the offers.

We conclude that Detective Carrillo's brief irrelevant explanation of why his team was in the area cannot have irreparably damaged appellant's chance of having a fair trial, particularly in light of the trial court's admonishment that the jury disregard it.

4. Pitchess Review

Appellant brought a Pitchess motion for discovery of complaints and other evidence of misconduct contained in the personnel files and other confidential records of Deputies Saavedra and Harris, and Detective Carrillo.⁵  The trial court granted the motion only as to Detective Carrillo, and on June 25, 2008, conducted an in camera hearing to determine whether there were discoverable records.   Appellant requests a review of the trial court's determination that there were no discoverable items in the records produced.

We find the reporter's transcript sufficiently detailed to review the trial court's discretion, without having to order the production of documents.  (See People v. Mooc (2001) 26 Cal.4th 1216, 1228-1229.)   We review the trial court's determination for an abuse of discretion.  (People v. Jackson (1996) 13 Cal.4th 1164, 1220-1221.)

Upon review of the sealed record of the in camera proceedings, we find that the custodian of the records of the Sheriff's Department complied with the scope of the Pitchess motion.   She testified under oath that no documents satisfied the request, because Detective Carrillo's personnel records contained no complaints of any kind, including internal affairs complaints, for the five-year period preceding the Sheriff's Department search.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ASHMANN-GERST

We concur:

FOOTNOTES

FN1. A Pitchess motion is one that seeks specific categories of information in the personnel files of law enforcement officers who will be called to testify at trial.  (See Pen.Code, §§ 832.7, 832.8;  Evid.Code, §§ 1043-1045;  City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81-82;  Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess ).).  FN1. A Pitchess motion is one that seeks specific categories of information in the personnel files of law enforcement officers who will be called to testify at trial.  (See Pen.Code, §§ 832.7, 832.8;  Evid.Code, §§ 1043-1045;  City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81-82;  Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess ).)

FN2. The prosecutor asked about April 17, 2007, although he apparently meant 2008, because, as respondent notes, he later asked about April 17 of last year, which placed the April 17 date in 2008..  FN2. The prosecutor asked about April 17, 2007, although he apparently meant 2008, because, as respondent notes, he later asked about April 17 of last year, which placed the April 17 date in 2008.

FN3. The parties stipulated that a senior chemist with the Los Angeles County Crime lab tested samples of the seized contraband, and it tested positive for cocaine base..  FN3. The parties stipulated that a senior chemist with the Los Angeles County Crime lab tested samples of the seized contraband, and it tested positive for cocaine base.

FN4. Respondent contends that appellant has failed to preserve the issue for appeal.   Citing the federal rule, as stated in Ohler v. United States (2000) 529 U.S. 753, respondent contends that by admitting the prior convictions in his own direct examination, appellant forfeited his objection to them.   The rule is otherwise in California.   Our Supreme Court has held that “[s]uch defensive acts do not waive an objection on appeal.   [Citation.]”  (People v. Turner (1990) 50 Cal.3d 668, 704, fn. 18.)   Respondent also contends that appellant forfeited his due process challenge, because he did not invoke the federal Constitution when he objected to the unsanitized priors.   We disagree.   Although appellant did not expressly invoke Evidence Code section 352, the court apparently understood it as a request to weigh the prejudicial effect of an identical prior conviction against its probative value.   This was sufficient to preserve a federal due process claim, because the due process claim is merely “an additional legal consequence of the asserted [state] error․”  (People v. Partida (2005) 37 Cal.4th 428, 438.).  FN4. Respondent contends that appellant has failed to preserve the issue for appeal.   Citing the federal rule, as stated in Ohler v. United States (2000) 529 U.S. 753, respondent contends that by admitting the prior convictions in his own direct examination, appellant forfeited his objection to them.   The rule is otherwise in California.   Our Supreme Court has held that “[s]uch defensive acts do not waive an objection on appeal.   [Citation.]”  (People v. Turner (1990) 50 Cal.3d 668, 704, fn. 18.)   Respondent also contends that appellant forfeited his due process challenge, because he did not invoke the federal Constitution when he objected to the unsanitized priors.   We disagree.   Although appellant did not expressly invoke Evidence Code section 352, the court apparently understood it as a request to weigh the prejudicial effect of an identical prior conviction against its probative value.   This was sufficient to preserve a federal due process claim, because the due process claim is merely “an additional legal consequence of the asserted [state] error․”  (People v. Partida (2005) 37 Cal.4th 428, 438.)

FN5. See footnote 1, ante..  FN5. See footnote 1, ante.

_, P.J. BOREN _, J. DOI TODD