P. v. Dekofski
Filed 5/26/06 P. v. Dekofski CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. LISA KATHLEEN DEKOFSKI, Defendant and Appellant. | F047168 & F047169 (Super. Ct. Nos. MF37487 & 29067) OPINION |
APPEAL from a judgment of the Superior Court of Merced County. Hugh M. Flanagan, Judge.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Clayton S. Tanaka and Paul A. Bernardino, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted appellant Lisa Kathleen Dekofski of various methamphetamine-related offenses. On appeal, she contends that (1) a modified instruction allowed the jury to use her prior drug conviction as propensity evidence; (2) an instruction was not applicable to the facts; and (3) remand is required to allow the court to exercise its discretion to strike the on-bail enhancement. We vacate the sentence and remand for resentencing.
PROCEDURAL HISTORY
On February 26, 2004, appellant was charged (in case No. MF37487 [F047168]) with possessing methamphetamine for sale (Health & Saf. Code, § 11378,[1] count 1); being present in a room where methamphetamine is being used (§ 11365, count 2); transporting methamphetamine (§ 11379, count 3); and possessing a billy club (Pen. Code, § 12020, subd. (a), count 4). It was further alleged with respect to counts 1, 3, and 4 that appellant committed the felony offenses while she was released on bail on another complaint (Pen. Code, § 12022.1, subd. (b)).
On March 15, 2004, appellant pled no contest to count 3 on the condition that she would receive felony probation, that all remaining counts and enhancements would be dismissed, and that she would be released on a Cruz waiver (People v. Cruz (1988) 44 Cal.3d 1247, 1254) on a promise to obey all laws. The court ordered appellant to return for judgment and sentencing on April 23, 2004.
Meanwhile, on March 26, 2004, appellant was arrested and charged (in case No. 29067 [F047169]) with possessing methamphetamine (§ 11377, subd. (a), count 1); being under the influence of methamphetamine (§ 11550, count 2, a misdemeanor); and possessing drug paraphernalia (§ 11364, count 3, a misdemeanor). As an enhancement on count 1, it was further alleged that appellant committed the felony offense while she was released on bail (Pen. Code, § 12022.1, subd. (b)). Appellant pled not guilty and denied all allegations.
A jury found appellant guilty on all counts and she admitted the on-bail enhancement. The court sentenced appellant to a term of five years and eight months: the midterm of three years on case No. MF37487 (count 3), one-third the midterm (eight months) on case No. 29067 (count 1), plus two years for the on-bail enhancement. On the misdemeanor counts 2 and 3 in case No. 29067, the court imposed concurrent time in the county jail.
FACTUAL HISTORY
On February 10, 2004, Agent Johnson of the Merced Multi-Agency Narcotics Task Force arrested appellant. She was in front of her residence, standing by a green Saturn, and holding a brown backpack-type purse. The officer conducted a lawful search of the purse and found three separate bags of methamphetamine, containing a total of 10.16 grams. He also found two scales, a glass pipe for smoking methamphetamine, and a small amount of marijuana. Inside the house, the officer found mail addressed to appellant at that residence. Appellant pled no contest to transportation of methamphetamine.
On March 26, 2004, the task force was again conducting a surveillance of appellant's residence. The agents waited for appellant to come outside because they had been informed she would flush the narcotics if they attempted to enter the residence. The agents also had been told she would always be in possession of her purse. Agent Key, who was in a car with Agent Johnson, saw appellant walk out of her house. She was carrying the same purse she had on February 10. She walked toward the rear of the green Saturn that was parked in front of her trailer, set the purse on the trunk of the car, and started fixing a tire. Agent Key contacted her and searched her purse. Inside, he found a plastic bindle containing .46 grams of methamphetamine, at least four average doses.
Appellant exhibited symptoms of being under the influence of a stimulant. She displayed irritation and acted moody, crying, constantly moving her hands, and her eyelids were retracted. Her pulse, blood pressure, and temperature were elevated. A urine sample collected later tested positive for methamphetamine. Although methamphetamine can stay in a person's system for up to three days, the effects of the drug only last between four and eight hours. Agent Key believed appellant recently had ingested methamphetamine.
Agent Johnson searched appellant's residence, finding mail addressed to appellant at that residence. In a dresser drawer in the spare bedroom, he found a folded business card holding a small amount (.14 grams) of methamphetamine. In the closet, in the pocket of a woman's sweater, he located a glass pipe that contained hardened methamphetamine, which can be used and reused. In the same closet, the officer found a man's black leather jacket, which had a hypodermic syringe and a plastic gram scale in the pocket. Hypodermic syringes can be used to inject methamphetamine. Appellant's husband, Robert, also lived at the residence.
Defense evidence
Appellant testified that she had used methamphetamine for many years and had been arrested before. She pled no contest four times and successfully completed drug programs. This was the first time she pled not guilty and went to trial. She admitted having a drug problem and had always taken responsibility for her offenses, including her admission that the drugs found on February 10 belonged to her. But this time, the drugs were not hers and therefore she chose to go to trial.
She and Robert had been fighting for a long time. He had figured out that she was planning to leave. Appellant had made numerous reports to law enforcement regarding his attempts to hurt her. Robert had tried to set her on fire five times; he had locked her in the bedroom; taken the telephone; turned off the power; and taken her purse. An officer once told her Robert was a threat to her life and she should leave him.
On March 26, Robert left for work, came back home, and became embroiled in another fight with appellant. He knew appellant was packing some of her things. He hit her, grabbed her purse, ran out the back door, and punctured her tire--disappearing for about 10 minutes. She ran out the back door and found her purse on the patio, much of its contents strewn about. Observing Robert sitting by the street waiting for a ride back to work, she picked up her things and put them back into her purse and went inside the residence. She noticed that Robert had taken all of her important papers, some of her jewelry, and a set of car keys from her purse. Her custom was to carry her valuables inside her purse. She did not see the bag of methamphetamine.
When she saw Robert get into a coworker's vehicle, she went outside and opened the trunk of her car. She tried to jack up her car so she could fix her tire and leave. At that time, the officers arrived. When the officers told her they had found drugs in her purse, she was shocked and observed that Robert had put drugs in her purse before, believing he had done so this time too. Quite a few times in the past, appellant had found methamphetamine with her belongings. Robert, like appellant, also had a long-term problem with methamphetamine.
During periods of methamphetamine use, appellant would smoke a lot of it. Robert preferred injecting it with a syringe. Appellant admitted smoking methamphetamine on the morning of March 26, but she had no knowledge of the methamphetamine in her purse that day. She admitted telling Agent Johnson on February 10 that Robert had planted the methamphetamine in her purse and had stashed it all over the house.
Appellant understood that, because she had been released on a Cruz[2] waiver, she could receive more punishment if she committed new offenses. She claimed she would not lie to save herself from this conviction.
Rebuttal evidence
Agent Johnson testified that when the officers found the methamphetamine in appellant's purse, she cried and said she had found it prior to their arrival and directed them to it in her purse. Appellant admitted there was contraband in the residence and indicated that Robert had hidden drugs all over the residence. Although appellant's descriptions of the hiding places were very accurate, the officers found no methamphetamine; however, they did find a cutting agent for methamphetamine.
Agent Johnson said that on March 26 he asked appellant if she had any knowledge of the methamphetamine in her purse. She said she had no personal knowledge of any narcotics or contraband located in the residence. It possibly all belonged to her husband and he was trying to set her up. Appellant told the officer that Robert had planted or hidden all the items in her purse. She did not mention that Robert had taken her purse or dumped it out. The jewelry was still in the purse.
Agent Key testified that on March 26 appellant told him she had smoked methamphetamine for 20 to 25 years. She said the last time she used it was a couple of days earlier. At that time, she did not mention that Robert had abused her, punctured her tire, taken her purse and dumped it, or taken her jewelry. Agent Key believed he saw her jewelry in the purse.
Deputy Blake testified that he spoke to appellant on March 26 at the county jail where she wanted to report a domestic violence incident. She told him that about four days earlier Robert grabbed her arms and held her down on the bed. He punched her three or four times with closed fists on her legs. Appellant showed the officer a dime-sized bruise on her right arm and she attempted to show him other bruises, but he could not see them. The officer had recently checked the computer system to determine whether it had received any calls from appellant's address concerning domestic violence. He found that a call had been made on March 26, 2004, but there were no other calls.
DISCUSSION
I. CALJIC No. 2.50
Appellant contends her conviction for methamphetamine possession (count 1) must be reversed because the trial court instructed the jurors with an incomplete version of CALJIC No. 2.50. She alleges that doing so permitted the jury to consider evidence of her prior drug offense on February 10 as propensity evidence and to directly infer her guilt from that evidence. In addition, appellant asserts that the instruction erroneously allowed the jurors to use evidence of her prior conviction as proof of her motive to commit the charged offense. She argues that there was no connection between the two unrelated acts and, therefore, the jurors would have assumed the motive tying both offenses together was her drug addiction. Finally, she contends that both errors violated her due process rights and should be assessed under the standard of Chapman v. California (1967) 386 U.S. 18. We conclude the alleged errors were harmless under any standard.
We set forth CALJIC No. 2.50, as read to the jury, with the addition of the omitted language appellant claims should have been included, which is bracketed and italicized. The language appellant claims permitted the jurors to improperly infer her guilt is underlined.
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