P. v. Armstrong

Filed 3/19/07 P. v. Armstrong CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Madera County. Jennifer R.S. Detjen, Judge.

Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted appellant Kurtis Armstrong of transportation of cocaine base (Health & Saf. Code, 11352, subd. (a); count 1), possession of cocaine base for purposes of sale (Health & Saf. Code, 11351.5; count 2) and sale of cocaine base (Health & Saf. Code, 11352, subd. (a); count 3). In a separate proceeding, the court found true allegations that appellant had suffered three strikes^[1]and had served two separate prison terms for prior felony convictions ( 667.5, subd. (b)). The court imposed a prison term of 52 years to life, with the determinate portion of the term consisting of 25 years on each of counts 2 and 3, and one year on each of the two prior prison term enhancements. On count 1, the court imposed, and stayed pursuant to section 654, a term of 25 years to life.

On appeal, appellant contends (1) the court erred in admitting into evidence a photograph of appellant taken at the time of appellants arrest, and (2) the court abused its discretion in denying appellants request to strike two of appellants strikes. We will affirm.

FACTS^[2]

Count 3

At approximately 3 p.m. on October 21, 2003,^[3]California Department of Justice (DOJ) Special Agent Alfredo Fuerte, who was participating in an undercover buy program, drove to McNally Park (the park) in Madera. Agent Fuerte was wearing plain clothes, and the car he was driving was unmarked and equipped with a concealed video camera.

As Agent Fuerte drove up to the park he called out to a man whom he identified in court as appellant and asked if he could purchase a 20, i.e., $20 worth of cocaine base. Appellant, using another slang term, i.e., roca[,] asked the agent if he wanted to buy cocaine base. Agent Fuerte replied that he did. At that point, appellant approached the car, reached through the open driver-side window and handed the agent what was later determined to be .17 grams of a substance containing cocaine base. In exchange, the agent handed appellant a $20 bill. The entire transaction took approximately seven seconds.

The transaction was recorded by the concealed video camera in the car. Approximately 10 minutes after the transaction, Sergeant Robert Blehm of the Madera Police Department viewed the videotape. Sergeant Blehm then took the tape to the Madera Police Station and, approximately 20 minutes after the transaction, showed it to Madera Police Officers Josiah Arnold and Steve Petterson. The tape showed an African-American adult male hand something to Agent Fuerte.

At Sergeant Blehms request, the officers drove to the park for the purpose of attempting to find the person shown in the videotape handing something to the agent. Upon arriving at the park, approximately 10 minutes after viewing the videotape, Officer Arnold immediately saw a person whom he identified in court as appellant. Appellant was wearing the same type of Rebels jersey, and appeared to be the same height and weight as the person the officers were looking for.

Officer Arnold approached appellant; stated he was new to the police department and was just out meeting new people ; and asked appellant his name. In response, appellant handed the officer a California Department of Motor Vehicles (DMV) identification card. On the card was a picture of appellant and certain information, including appellants name and DMV identification number.

Officer Arnold wrote down appellants name and identification number, and later conveyed this information to Sergeant Blehm. Thereafter, Sergeant Blehm, utilizing this information to conduct a computer search of the DMV Cal Photo system, obtained a copy of the same photograph that appeared on appellants identification card.

Later, another DOJ special agent showed the photograph to Agent Fuerte, at which time Agent Fuerte identified the person depicted in the photograph as the person from whom he obtained cocaine base on October 21 in the park.

The videotape was played for the jury. Agent Fuerte testified the person shown in the videotape was appellant.

Counts 1 and 2

Fresno Police Officer Jeffrey Lee was employed as a Madera County deputy sheriff when, at a point during the very early hours on October 23, he and another deputy stopped a car in which appellant was a passenger. Deputy Lee directed appellant to get out of the car and sit on the ground near the car. Appellant complied. Thereafter, Deputy Lee handcuffed appellant, assisted him in getting to his feet, led him to the patrol car and placed him in the vehicle. As appellant got to his feet, Madera Police Sergeant Matthew Wiles, who had arrived on the scene to assist the deputies, observed appellant drop an object from his left hand. Sergeant Wiles informed Deputy Lee of this, and thereafter the deputy went to the spot where appellant had been sitting and found, on the ground, a baggie containing five individually wrapped off-white rock-type objects. Later that night, Deputy Lee booked appellant into the Madera County Jail. Chemical analysis of three of the objects found by Deputy Lee revealed that each contained cocaine base.

DISCUSSION

Admission into Evidence of Booking Photograph

Appellant contends the court erred in admitting, over defense objection, a photograph of him taken by Madera County Department of Corrections personnel on October 23 at the time he was booked into county jail. Specifically, appellant argues, as best we can determine, that the probative value of this booking photograph was substantially outweighed by its potential for undue prejudice, and therefore the trial court, in admitting the photograph, violated Evidence Code section 352^[4](section 352)and appellants constitutional due process rights.

Background

Prior to trial, the prosecution moved to admit four booking photographs of appellant taken on October 23, for the purpose of showing that on that date appellants hairstyle and facial hair were the same as the person depicted in the October 21 videotape, and that therefore appellant was the person depicted in the videotape. Specifically, the prosecution argued as follows: the person depicted in the videotape has short, braided hair, pulled tightly to his head and barely perceptible facial hair; appellants last court appearance revealed his appearance has changed so that his face is now cleanly shaven and his hairstyle is different; and appellants appearance, as captured in the booking photographs, more closely depicts appellant as he appeared on October 21.

The defense objected that the booking photographs were irrelevant as to identity and, if relevant, their probative value was outweighed by their prejudicial effect . . . .

The court found that three of the booking photographs were irrelevant, but that one that showed the subject in left profile was relevant because it depicted the exact same style of hair as that of the person shown in the October 21 videotape. The court further found that the potential for undue prejudice did not outweigh the probative value because the jury is going to know he was booked [on October 23] anyway, and therefore the prejudicial effect of . . . [the] booking photo is not very great . . . .

The left profile booking photograph (booking photograph) was admitted into evidence at trial. Madera County Department of Corrections Lieutenant Jack Nelson testified it was a true and accurate photograph of the person that was booked as Kurtis Armstrong on October 23rd, 2003[.] Deputy Lee testified the booking photograph accurately represent[ed] appellant on October 23.

Analysis

Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) [T]he ordinary rules of evidence, including the application of Evidence Code section 352, do not infringe on the accuseds due process right to present a defense. (People v. Frye (1998) 18 Cal.4th 894, 948.) A reviewing court will not disturb a trial courts exercise of discretion under Evidence Code section 352 unless it is shown the trial court exercised its discretion in an arbitrary, capricious or patently absurd manner. (Ibid.; accord People v. Karis (1988) 46 Cal.3d 612, 637 [such discretion will not be disturbed on appeal absent a clear abuse, i.e., unless the prejudicial effect of the evidence clearly outweighs its probative value]; People v. Tran (1996) 47 Cal.App.4th 759, 771 [A trial courts exercise of discretion under Evidence Code section 352 will not be reversed unless it exceeds the bounds of reason, all of the circumstances being considered ].)

We examine first the probative value of the challenged evidence. Probative value goes to the weight of the evidence of other offenses. The evidence is probative if it is material, relevant, and necessary. [H]ow much probative value proffered evidence has depends upon the extent to which it tends to prove an issue by logic and reasonable inference (degree of relevancy), the importance of the issue to the case (degree of materiality), and the necessity of proving the issue by means of this particular piece of evidence (degree of necessity). (People v. Thompson, supra, 27 Cal.3d at p. 318, fn. 20; accord, People v. Steele (2002) 27 Cal.4th 1230, 1282-1283.)

There is no dispute as to the following: (1) the videotape, coupled with the testimony of the various law enforcement personnel, provides strong evidence that someone sold cocaine base to Agent Fuerte on October 21; (2) the drug seller depicted in the videotape resembled appellant, in hairstyle and facial hair pattern, as appellant was depicted in the booking photograph taken October 23, only two days after the drug sale; (3) at the time of trial, appellants appearance differed from that of the drug seller shown in the videotape; and (4) appellants defense was that he was not the person depicted in the videotape. Therefore, the booking photograph was highly relevant, i.e., it tended to prove an issue in the case: the identity of the drug seller depicted on the videotape. And because this was the central issue with respect to count 3, the challenged evidence was highly material. Appellant disputes neither of these points.

His argument focuses on the question of the necessity of admitting the booking photograph. He argues that because Agent Fuerte identified appellant as the drug seller, there was absolutely no need to admit the booking photograph to prove the identity of the drug seller. We disagree.

As indicated above, Agent Fuerte, at trial, identified appellant as the person from whom he bought drugs on October 21, and the prosecution adduced evidence that shortly after the October 21 drug sale, Agent Fuerte indicated to another agent that the person depicted in appellants DMV photograph was the person from whom the agent bought drugs. However, Agent Fuertes in-court identification of appellant was based on his observation of appellant over a period of only seven seconds more than two years prior to trial. And the defense elicited testimony that Agent Fuerte was shown only one photograph, that of appellant, although typically, law enforcement personnel, when asking a witness to identify a person from a photograph, show the witness several photographs, in an effort to avoid making the identification procedure unduly suggestive. In closing argument, defense counsel referred to both these points in challenging Agent Fuertes in-court and pretrial identifications of appellant. On this record, we cannot say, as appellant asserts, that there was no need to admit the booking photograph. (Compare People v. Allen (1986) 42 Cal.3d 1222, 1257 [where defendant objected to admission of photographs on section 352 grounds, it militated in favor of a finding of undue prejudice that the testimony they were offered to corroborate was itself . . . essentially uncontested].)

We turn now to the prejudice side of the balance. Prejudice for purposes of Evidence Code section 352 means evidence that tends to evoke an emotional bias against the defendant . . . . (People v. Crew (2003) 31 Cal.4th 822, 842.) Appellant suggests the booking photograph created a danger of undue prejudice because it told the jury appellant had been arrested. However, as the trial court pointed out, it was likely the jury would learn this fact from other properly admitted evidence. And, in fact, evidence was adduced that the booking photograph was taken on October 23, and that appellant was arrested on that date for the offenses charged in counts 1 and 2. This factor militates against the conclusion the booking photograph was unduly prejudicial.

The foregoing demonstrates the following with respect to the challenged evidence: its relevancy and materiality militate strongly in favor of admission; its necessity, though not as great, was not nonexistent; and its prejudicial effect was greatly mitigated by the fact that the fact of appellants arrest was put before the jury by other properly admitted evidence. On this record, the admission of the booking photograph was well within the courts discretion under Evidence Code section 352, and therefore did not violate either appellants statutory or due process rights.

Appellants Request to Strike Two Strikes

At sentencing, defense counsel asked the court to strike two of appellants three strikes. The court denied the request. This denial, appellant, contends, constituted an abuse of discretion. We disagree.

Appellants Criminal History

Appellant suffered a juvenile adjudication of grand theft ( 487) in February 1993, and was placed on probation. He committed four violations of probation in 1993, after the last of which, in July, he was committed to the California Youth Authority (CYA).

As indicated above, appellant suffered three strikes: a second degree robbery conviction in 1994, his first conviction as an adult, when he was 18 years old; a conviction of the same offense, later in 1994, for which he received three years probation; and a 1996 conviction of receiving stolen property ( 496) with an enhancement for personal use of dangerous or deadly weapon ( 12022, subd. (b)), his most recent prior conviction. He was on parole at the time of his 1996 conviction. Following that conviction he was sentenced to prison and returned to CYA. Appellant served two prison terms.

Governing Principles

Section 1385 provides, in relevant part, The judge or magistrate may . . . in furtherance of justice, order an action to be dismissed. ( 1385, subd. (a).) In People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530, the California Supreme Court concluded that section 1385, subdivision (a) permit[s] a court acting on its own motion to strike prior felony conviction allegations in cases brought under the Three Strikes law.

In People v. Williams (1998) 17 Cal.4th 148, the California Supreme Court set forth the factors relevant to the determination of whether to strike a strike: [I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, in furtherance of justice pursuant to [section 1385, subd. (a)] or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. (Id. at p. 161.)

A superior courts determination not to strike a strike is reviewable for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376.) In [conducting this review], we are guided by two fundamental precepts. First, [t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. [Citation.] Second, a decision will not be reversed merely because reasonable people might disagree. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (Id. at pp. 376-377.)

Thus, [i]t is not enough to show that reasonable people might disagree about whether to strike one or more prior conviction allegations. . . . Because the circumstances must be extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary. Of course, in such an extraordinary casewhere the relevant factors described in Williams, supra, 17 Cal.4th [at p. 161], manifestly support the striking of a prior conviction and no reasonable minds could differthe failure to strike would constitute an abuse of discretion. (People v. Carmony, supra, 33 Cal.4th at p. 378.)

Analysis

The instant case is not the extraordinary one in which departure from three strikes law sentencing scheme is compelled. In the space of less than 11 years, appellant has suffered one juvenile adjudication, apparently a misdemeanor, and six adult felony convictions, three of which were serious enough to qualify as strikes and one of which involved violent conduct. He has received multiple grants of both probation and, it appears, parole. Thus, appellant has demonstrated a continuing pattern of reoffending regardless of past sanctions and attempts to rehabilitate through the juvenile justice system as well as adult probation and parole.

We recognize, as appellant points out, that none of the instant convictions was serious enough to qualify as a strike or involved violence or damage to property, and that two of appellants strikes occurred when he was 18 years old. These factors, however, suggest at most only that this matter may have been within the range of cases as to which the trial court had discretion under section 1385 to strike appellants strikes. Nothing in the record compels the striking of one or more strikes, and it was not irrational for the court to refuse to treat appellant as if he had not previously suffered strikes. Accordingly, the court did not abuse its discretion in refusing to strike any of appellants strikes.

DISPOSITION

The judgment is affirmed.

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^* Before Vartabedian, A.P.J., Harris, J., and Gomes, J.

^[1] We use the term strike, in its noun form, as a synonym for prior felony conviction within the meaning of the three strikes law (Pen. Code, 667, subds. (b)-(i); 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.Except as otherwise indicated, all further statutory references are to the Penal Code.

^[2] The factual statement is taken from the testimony of prosecution witnesses. The defense called no witnesses and presented no evidence.

^[3] Further references to dates of events are to dates in 2003.

^[4] Section 352 provides, in relevant part: The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice . . . .