PEOPLE v. SALSMAN (1994)

Appellant, Melvin Delois Salsman, appeals from a conviction of residential burglary.  (Pen.Code, § 459.)   The evidence established that a man entered the residence of the victim, an elderly lady, for the purpose of inducing the lady to reveal where she kept her money.   The man's evident purpose was to steal the money once its location had been revealed.   But the plan miscarried when it turned out that the lady had no money put aside.   The man left her apartment, and she called 9–1–1.   The principal issue on this appeal is whether the evidence is sufficient to support the jury's finding that appellant is the man who entered the apartment.   An important subissue is whether evidence that had been suppressed at a pretrial motion was properly admitted to impeach appellant's alibi testimony.   We conclude that the evidence identifying appellant as the perpetrator is sufficient, and that the suppressed evidence was properly admitted for purpose of impeachment.   We shall affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

In the afternoon of June 6, 1989, Sue Detiege was alone at her residence, located at 6072 Hayes Avenue in Los Angeles.   Ms. Detiege was 81 or 82 years of age at the time.   A man came to her door and identified himself as being with “Social Security Supplementary,” and flashed some sort of purported identification.   He said that he wanted to talk to Ms. Detiege.   She opened the screen door to take his proffered identification, and he “jumped in the house.”   He did not have permission to enter.   While Ms. Detiege was trying to take this in, the man sat himself down in a chair.

He had a wad of money in his hand, and said, “This money is for you” and that Supplementary Insurance did not want to send it through the mail, it being such a large sum.   The man went on to explain that before turning over the money he had to be assured that Ms. Detiege had a safe place to keep it, and he asked her to show him where she kept her money.

Ms. Detiege, who was on Social Security, thought that it was possible that the man was present on a legitimate mission.   She took him to her bedroom and opened a dresser drawer, saying “I keep my money here.”   The man elbowed her aside and put his hand inside the drawer.   When he said, “There is no money here,” Ms. Detiege replied that the drawer was where she kept her money when she had any.

The man returned to the front room and stared at Ms. Detiege for a time.   When she asked to see his identification, he “jumped out the screen door and went and took off.”   Ms. Detiege, who knew that she had been in the hands of a confidence man, called 9–1–1.   When she received an answer on the emergency line, she told what had happened and described the man who had been at her residence.

The man was a white male, about 65 years old, wearing a white shirt and brown slacks and carrying a leather briefcase.

The scam to which Ms. Detiege had been subjected was later described at the trial by Sergeant Dennis E. Adams, a police expert in such things.   Sergeant Adams had been a member of the Los Angeles Police Department for 28 years, 16 years of which had been on a bunco/forgery assignment.   The fraud attempted against Ms. Detiege was a Social Security scheme.   The victims are usually very elderly.   The perpetrator typically presents himself as being from some segment of the Social Security Administration and tells the victim that she has a rebate coming.   The perpetrator flashes what appears to be a large amount of money.   He asks for change for a large bill, or says that before turning over money due the victim, he must be satisfied that the victim is able to handle her own affairs, and to keep money in a safe place.   He tries to persuade the victim to reveal where money is kept and, once the location is revealed, to distract the person and take the money.

Jeanette Killen lived on Avenue 59, two short blocks from Ms. Detiege.   On the afternoon of June 6, 1989, she was working in her garden when appellant walked through the gate and initiated a conversation.   She had never seen him before.   Appellant was neat, wearing a white shirt and carrying a briefcase.   He seemed calm, and was not out of breath.   Appellant made admiring comments about Ms. Killen's home and garden, and asked whether the residence was for sale.   Ms. Killen had lived at the location for 54 years and had no intention of selling.   After appellant had been in the yard for about five minutes, police arrived, ran through the gate, and apprehended appellant.   They took him to a police vehicle.

Appellant had been apprehended by two members of the Los Angeles Police Department who had been dispatched to Ms. Detiege's home after the 9–1–1 call had been received.   They were on their way to that location when they saw appellant, who answered the description they had received.   Appellant was a white male who appeared to be 65 years of age, was wearing a white long-sleeved shirt and brown pants, and was carrying a zippered leather pouch, about 18” by 12”.   His vehicle was found parked as though it had turned onto the street from Hayes or Avenue 59.

The officers looked inside the briefcase appellant was carrying, and found $600 in 20–dollar bills, about which we will have more to say.   Appellant was taken to a police station but was released without formal charges.

Some nine months later, in March 1990, Ms. Detiege received a telephone call from Ms. Sue Stryker, an investigator for the Monterey County District Attorney's Office.   She gave Ms. Stryker permission to call on her and, on March 20, 1990, Ms. Stryker did so.   She showed Ms. Detiege a 6–pack group of photographs.   Ms. Detiege identified appellant's photograph as that of the person who had represented himself as a Social Security representative at her home.

Based on that identification, Ms. Stryker asked Ms. Detiege to come to Monterey County to testify at a felony preliminary hearing in which appellant was involved.   Ms. Detiege agreed to do so.   At the Monterey proceedings, Ms. Detiege was asked to select the man who had called on her from six men seated behind the bar of the court, some 40 feet away.   She identified a man other than appellant.   But on walking past the men on her way out of the courtroom, she recognized appellant.   She notified the Monterey authorities of her mistake, and was recalled to the witness stand, from which she identified appellant.

Ms. Detiege also identified appellant at the felony preliminary hearing in this case as well.   Before she testified, a member of the district attorney's office pointed to a man—apparently appellant—and asked Ms. Detiege if she recognized him.   Ms. Detiege said that she did not, as the man's back was to her at the time and she could not see his face.   She positively identified appellant at trial as the man who had posed as a Social Security representative at her home.

When the case was assigned for trial, appellant brought a motion to suppress the contents of the briefcase and subsequent events on the ground that there had been an illegal search and seizure of appellant at Ms. Killen's residence.   The court initially denied the motion but on reconsideration, ordered that the contents of the briefcase (only) be suppressed.   The case eventually was transferred to another department, where it was tried.   The trial judge honored the suppression order made by the first judge, but refused to extend it to other evidence.

Appellant testified in his own defense.   He denied ever being at Ms. Detiege's residence.   He said that he was a retired real estate broker, living in Long Beach, that on June 6, 1989, he had driven to Glendale to meet with an insurance agent but, not finding the agent there, he had driven to Highland Park were he had owned property.   He went directly to Ms. Killen's residence.   He did not know Ms. Killen.   He wanted to see if she was interested in selling her home, and was talking to her about it when police rushed in, handcuffed him, and took him away.

Appellant was found guilty by jury verdict.   He was sentenced to state prison for the low term of two years.   He has filed a timely notice of appeal.

DISCUSSION

I

 Appellant does not deny that Ms. Detiege was the attempted victim of a Social Security scam.   He argues that the evidence identifying him as the perpetrator is insufficient to support his conviction.   Since appellant made an unsuccessful Penal Code section 1118.1 motion for acquittal, we examine the contention of insufficiency based on the state of the evidence at the close of the People's case-in-chief.  (People v. Belton (1979) 23 Cal.3d 516, 526, 153 Cal.Rptr. 195, 591 P.2d 485.)   In ruling on such a motion, the trial court is bound to apply the same test used by appellate courts in reviewing a claim of insufficiency of evidence.  (People v. Wong (1973) 35 Cal.App.3d 812, 828, 111 Cal.Rptr. 314.)

 That test is the familiar rule of substantial evidence:  whether, reviewing the record in the light most favorable to the judgment, there is substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that the trier of fact could find the defendant guilty beyond a reasonable doubt.  (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738;  Jackson v. Virginia (1979) 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.)   This test is applied to a claim of insufficiency of identification evidence.  (See People v. Caudillo (1978) 21 Cal.3d 562, 570, 146 Cal.Rptr. 859, 580 P.2d 274.)

Measured by that standard, the evidence at trial was entirely sufficient.   Ms. Detiege identified appellant or his photograph on several occasions:  in a photographic line-up presented by the Monterey investigator;  at the Monterey proceedings;  at the felony preliminary hearing in this case;  and at trial.   Appellant had not made a fleeting appearance at her residence;  he was with her long enough for a clear identification to be made.

Ms. Detiege gave a description of the person who had been in her apartment moments before her call:  a 65–year–old white male, wearing a white shirt and brown slacks and carrying a leather briefcase.   Minutes later a man meeting exactly that description was found two short blocks away talking to a lady he had never met, ostensibly about buying her home.

Appellant argues that Ms. Detiege identified the wrong person in Monterey, and he suggests that her identification at the Los Angeles preliminary hearing was the product of suggestion by a member of the district attorney's staff.   Ms. Detiege fully explained both occurrences.   The first did involve a misidentification, but it was Ms. Detiege who discovered her error when she positively identified appellant as she was walking by him on the way out of the courtroom.   She effectively denied that a suggestive identification occurred at the Los Angeles felony preliminary hearing.

These credibility issues are for the jury to decide.   They are, in fact, precisely the kinds of fact issues that juries do decide, and appellate courts do not second guess.

Finally, in a Supplemental Brief, appellant attempts to present expert opinion evidence on appeal that was not offered at trial.  (This portion of the Supplemental Brief principally consists of a report on “[e]xperiments by Shepard and Deregowski [of] extended observations concerning salient features to multidimensional scaling techniques to similarity judgments among black or white faces by African and European subjects”, and an extended treatise quotation about problems in eye witness identification.)   As an appellate argument, it is not an impressive showing.   We are in no position to reweigh the identification evidence on the basis of what is really nothing less than new evidence proffered on appeal.   The evidence presented at trial was sufficient to convince the trier of fact, and substantial enough to support the decision of that body.

 Appellant argues that the trial court erred in allowing the testimony of Sergeant Adams, the police expert in Social Security fraud.   His complaint is that the officer testified to the “ultimate issue” of whether a burglary occurred;  i.e., whether the person who entered Ms. Detiege's apartment did so with the intention of committing theft or a felony.

First, as we have seen, appellant concedes that the attempted theft scam occurred.   That observation aside, “the decision of a trial court to admit expert testimony ‘will not be disturbed on appeal unless a manifest abuse of discretion is shown.’ ”  (People v. McAlpin (1991) 53 Cal.3d 1289, 1299, 283 Cal.Rptr. 382, 812 P.2d 563, quoting from People v. Kelly (1976) 17 Cal.3d 24, 39, 130 Cal.Rptr. 144, 549 P.2d 1240.)   Further, “[i]t is neither unusual nor impermissible for an expert to testify to an ultimate issue, and such opinions are expressly contemplated by Evidence Code section 805.”   (People v. Doss (1992) 4 Cal.App.4th 1585, 1596, 6 Cal.Rptr.2d 590.)

 Appellant also argues that the police expert overstepped his bounds by testifying that appellant is the person who committed the crime.   The basis for this claim is in the witness's several references to “the suspect,” and one reference to “the suspect in this case.”   Appellant's attorney objected after the witness testified that “the suspect” had accomplished all of the elements of the Social Security scheme which was “simply a rouse [sic] ․ to commit a burglary.”   The objection was on the ground that the witness had expressed “an improper opinion.   It's up to the jury to decide what the case is.”   No specific objection was made to use of the jargon, “the suspect.”

The objection was overruled on the ground stated, but it elicited an admonition from the court directed to the jury's role in deciding the ultimate issues in the case:

“The ultimate question, ladies and gentlemen—and you will be given instructions regarding expert testimony and the law in this case.

“Whether or not there was a burglary, who committed the burglary are ultimate facts for you to determine.

“Mr. Cagney [the prosecutor] is putting on an expert witness and this expert witness is merely giving his opinion, and you can disregard it in total or you can utilize it in the totality of the facts.

“The ultimate question is up to you.   So, whether or not a burglary occurred and was committed by whom is up to you.

“This officer is merely testifying to this expertise.

“In rendering an opinion based upon his expertise, you can take it or you can leave it.”

The prosecutor concluded his direct examination of the witness with the following exchange:

“Q Just so there is no mistake, Sergeant Adams, you weren't there when the man went inside Mrs. Sue Detiege's house, right?

“A Right.

“Q So, based on the testimony that you have—that you have heard in this courtroom only and based on that 911 tape, you are telling us that the person in there committed a burglary, correct?

“A That's correct.

“Q So, based only on the information in this courtroom that you have heard and the 911 tape—you can't give the opinion that this is the man, right, because you weren't there?

“A That's correct.”

The witness made no further reference to “the suspect” (defense counsel, in cross-examination, referred to “somebody,” and there was no redirect);  the issue was not revisited;  and in summation argument, neither attorney referred to this testimony.

There was no error warranting reversal with respect to the testimony of the witness.

III

 Appellant challenges the trial court's ruling allowing introduction of evidence, previously suppressed, of the contents of the briefcase he was carrying when he was apprehended at Ms. Killen's residence.   Given appellant's match with Ms. Detiege's description, his presence only two short blocks from her residence, some doubt might be entertained as to the suppression order itself.   Nevertheless, the order was made and no appellate review was sought to overturn it.  (See Pen.Code, § 1538.5, subd. (o).)  We therefore assume, for purposes of this review, that the order was properly granted.  (Cf. California v. Hodari D. (1991) 499 U.S. 621, ––––, 111 S.Ct. 1547, 1549, 113 L.Ed.2d 690.)

 In light of the “Truth–in–Evidence” provision of the California Constitution (art. I, § 28, subd. (d)), we apply the federal rule to test the propriety of the trial court's ruling admitting the evidence.  (In re Lance W. (1985) 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744;  People v. May (1988) 44 Cal.3d 309, 243 Cal.Rptr. 369, 748 P.2d 307.)   That is the rule of United States v. Havens (1980) 446 U.S. 620, 100 S.Ct. 1912, 64 L.Ed.2d 559, Harris v. New York (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, and other cases, that exclude illegally obtained evidence from the prosecution's case-in-chief, but permit it in rebuttal to impeach testimony by the defendant.   The purpose of the rule is to prevent a defendant from being able to convert an exclusionary policy erected to protect against police overreaching into a device that would permit perjury with impunity.   That purpose was ably described by Justice Frankfurter in an early case:  “It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained.   It is quite another to say that the defendant can turn the illegal method by which evidence in the Government's possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths.”  (Walder v. United States (1954) 347 U.S. 62, 65, 74 S.Ct. 354, 356, 98 L.Ed. 503.)   Doing so “would be a perversion of the Fourth Amendment.”  (Id. at p. 65, 74 S.Ct. at p. 356.)

The prosecution presented its case-in-chief without any reference to the suppressed evidence.   Appellant testified on his own behalf.   He sought to explain his presence in the area:  he was a retired real estate broker looking for residential investment opportunities and, as such, was attracted to Ms. Killen's property.   On cross-examination, the prosecutor elicited evidence that appellant was dressed as Ms. Detiege had described him, and was carrying a briefcase consistent with her description.   Defense counsel objected when the prosecutor asked appellant what was in the briefcase.   The court overruled the objection, ruling that the evidence was admissible.

Its ruling was correct.   Appellant's presentation of himself as a retired real estate broker looking for a likely investment invited cross-examination to test the bona fides of that claim.   One would expect that if appellant were as he described, the briefcase he was carrying would contain information about real estate in the area.   Indeed, if the briefcase was anything but a prop, what else could one expect?   This questioning was well within the wide latitude permitted in cross-examination to test the credibility of a witness.   (See 3 Witkin, Cal. Evidence (3d ed. 1986) § 1887, p. 1842, and cases cited.)

Appellant offers a series of related arguments in support of his position that the ruling was error, nevertheless.   None is meritorious.

Appellant argues that the rule of People v. Belleci (1979) 24 Cal.3d 879, 157 Cal.Rptr. 503, 598 P.2d 473 applies to this case.  Belleci held that evidence suppressed pursuant to a Penal Code section 1538.5 hearing cannot be used for any purpose.   The difficulty with this argument is that Belleci was decided before adoption of the Truth–in–Evidence provision, which has overridden it.  (See People v. Moore (1988) 201 Cal.App.3d 877, 885, 247 Cal.Rptr. 353;  People v. Johnson (1989) 211 Cal.App.3d 392, 259 Cal.Rptr. 388.)   Nor has the fact that section 1538.5, has been amended since adoption of Proposition 8 changed that result.  (See People v. Gutierrez (1984) 163 Cal.App.3d 332, 334, fn. 1, 209 Cal.Rptr. 376.)

Appellant argues that Lance W. (and, presumably, other decisions, such as People v. May, that reached the same result) “is now suspect” in light of Raven v. Deukmejian (1990) 52 Cal.3d 336, 276 Cal.Rptr. 326, 801 P.2d 1077.   In citing Raven, appellant invokes the holding of that case rejecting the portion of Proposition 115 that would have mandated that the California Constitution not be construed to afford defendants in criminal cases greater rights than they have under the federal constitution.   The Supreme Court concluded that this provision would work so sweeping a change in the structure of California constitutional rights that it could not be accomplished by constitutional amendment, but only by revision.  (Id. at pp. 352–354, 276 Cal.Rptr. 326, 801 P.2d 1077.)   As Raven itself recognized, the situation is different with respect to Proposition 8, through which the Truth–in–Evidence provision was enacted.  (Id. at p. 347, 276 Cal.Rptr. 326, 801 P.2d 1077.)   The precise issue raised by appellant was considered and rejected in Brosnahan v. Brown (1982) 32 Cal.3d 236, 247, 186 Cal.Rptr. 30, 651 P.2d 274, which remains commanding precedent.

On a narrower plain, appellant challenges the trial judge's ruling that evidence of the contents of the briefcase was admissible “under 352,” i.e., section 352 of the Evidence Code.   He correctly points out that section 352 is a rule of exclusion rather than inclusion.   The trial court did raise section 352, sua sponte, but a review of the court's statement makes it plain that the basic ruling was that the evidence was admissible to impeach appellant's alibi testimony, and that the court also concluded that the prejudicial effect of the evidence did not outweigh its legitimate probative force.

 Appellant also argues that the trial court failed to give a limiting instruction to the effect that the evidence could only be considered for impeachment.   Such an instruction would have been appropriate.  (See United States v. Hinckley (D.C.Cir.1982) 672 F.2d 115, 133, fn. 117, disapproved on other grounds in Hudson v. Palmer (1984) 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393;  People v. Johnson (1989) 211 Cal.App.3d 392, 395, fn. 2, 259 Cal.Rptr. 388.)   Appellant failed to request such an instruction, and so lost the issue as a basis for reversal on appeal.  (See People v. Moore, supra, 201 Cal.App.3d at p. 886, 247 Cal.Rptr. at p. 353.)

Appellant also argues that the prosecutor committed misconduct in trying to get the contents of the briefcase before the jury before appellant had taken the stand, and that the prosecutor suggested in argument that appellant was trying to hide the fact that he had the money in the briefcase.   But the prosecutor did not get the evidence before the jury until the trial court admitted it.   Nothing else the prosecutor did approaches the egregious action necessary to reverse a conviction on the basis of misconduct.  (See People v. Milner (1988) 45 Cal.3d 227, 245, 246 Cal.Rptr. 713, 753 P.2d 669.)

 At oral argument, appellant asserted that the prosecutor committed misconduct by waving $600 in 20–dollar bills during opening summation.   The record reflects that this occurred, bringing an objection by defense counsel.   The trial judge told the prosecutor to put the money away and confine himself to argument.   The prosecutor complied.

It was improper for the prosecutor to make this demonstration, at least without having notified the court and counsel in advance of his intent to do so.   The money displayed was not in evidence.   And while $600 in 20–dollar bills was found in appellant's briefcase, Ms. Detiege did not know how much money had been displayed during the encounter in her residence;  she only knew that it was a “wad” of money.   Defense counsel was right to object, and the trial court acted properly.   No request for an admonition was made, and it does not appear that any was needed.   There is no showing that appellant was prejudiced by the prosecutor's brief display, which was immediately brought to a halt.

IV

 In his supplemental brief, appellant attempts to lay the fault for his conviction at the feet of his trial counsel.   He argues that his attorney should not have called him to testify, since doing so led to the impeachment of his testimony.   He also sets out a bill of 17 errors of omission, none supported by anything more than the naked assertion of the supposed shortcoming.   These range from failure to move for a lineup, through failure to “call a real estate broker regarding cold calls”, to failure to call character witnesses, to argue effectively, and to object to improper argument.

 With respect to the supposed failures of trial counsel, it is the obligation of appellate counsel to demonstrate that there really was a failing, that it resulted in ineffective assistance, and that the result was a prejudice to appellant.  (See Strickland v. Washington (1984) 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674;  People v. Ledesma (1987) 43 Cal.3d 171, 216, 233 Cal.Rptr. 404, 729 P.2d 839.)   Appellant's counsel on appeal has failed to do any of these things.

 The argument that appellant should not have been called to testify fails on several grounds.   First, there is no showing that trial counsel made the decision to call appellant to the stand.   A defendant in a criminal case has a right to testify, even against the advice of counsel.   This is one aspect of the trial that counsel does not control.  (See People v. Blye (1965) 233 Cal.App.2d 143, 149, 43 Cal.Rptr. 231;  People v. Harris (1987) 191 Cal.App.3d 819, 825, 236 Cal.Rptr. 680.)   Second, assuming that trial counsel did advise appellant to testify and that he did so pursuant to that advice, there is no proper way this court could reverse the conviction with respect to that kind of tactical decision without running afoul of the commandments of Strickland and Ledesma against just that sort of second-guessing.   Finally, given Ms. Detiege's identification testimony, which remained unshaken after cross-examination, and the curious circumstance of appellant's presence in the area, it may well have appeared that the best, if not the only prospect of success, lay in explaining his presence.   That is, again, a tactical decision that an appellate court cannot properly adjudicate.

DISPOSITION

The judgment is affirmed.

EPSTEIN, Acting Presiding Justice.

CHARLES S. VOGEL and HASTINGS, JJ., concur.