P. v. Fernando

Filed 7/5/07 P. v. Fernando CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendant Richard Albert Fernando appeals from a judgment of conviction entered after a jury found him guilty of sale of cocaine base (Health & Saf. Code,  11352, subd. (a)) and possession of drug paraphernalia (Health & Saf. Code, 11364). In a bifurcated proceeding, defendant admitted that he had suffered two prior drug sale convictions. The trial court sentenced defendant to eight years in state prison. On appeal, defendant contends that his trial counsel rendered ineffective assistance by failing to object to a modified version of CALJIC No. 2.50. For the reasons stated below, we affirm.

I. Statement of Facts

At approximately 5:45 p.m. on June 24, 2005, Officer Ian Cooley was conducting surveillance near the intersection of First and Santa Clara Streets in downtown San Jose. It is common for drug transactions to occur in this area. Cooley, who was using binoculars, was approximately 300 feet away. His attention focused on Frederick Whele, who was walking erratically down First Street, and occasionally stopped to talk to people. Cooley also saw defendant, who was walking back and forth, looking around, talking to passersby, and repeatedly backing into a doorway used by drug dealers. Cooley lost sight of Whele when Whele walked south on First Street. However, Whele eventually returned to the area with another individual Kenneth Plummer.

Whele and Plummer met with defendant. Plummer handed an object to defendant, which defendant put into his pocket. Defendant then took an object out of his pocket, and gave it to Plummer. Plummer and Whele walked east about 100 feet on Santa Clara Street, stopped, and returned to defendant. Whele handed an object to defendant. Defendant appeared to be searching through his pockets, removed an object, and handed it to Whele. Following this transaction, Whele and Plummer walked east on Santa Clara Street while defendant walked east on First Street.

Based on his training and experience, Cooley believed that there had been a drug transaction. He radioed descriptions of the three men to other officers, and asked for assistance. Shortly thereafter, officers detained Plummer, Whele, and defendant. When Cooley arrived on the scene, he saw a small plastic baggie within one or two feet of Whele. The baggie contained .33 grams of cocaine base, which was worth $20. Cooley also searched the area, but did not find a pipe.

Officer Andy Lacayo testified that he responded to the scene and searched defendant. He found a glass tube or pipe to smoke drugs, plastic baggies, and $40 (a $20 bill, a $10 bill, and two $5 bills) on defendants person.

Plummer testified that he sometimes introduced a drug seller to a buyer for which he would receive money or drugs. Plummer described the events on the day in question. When Whele asked Plummer if he knew anyone that sold rock cocaine, he said no. Whele also asked if he knew anyone who had a pipe, and Plummer said that he might. Plummer and Whele then approached defendant, and Plummer asked if he had a pipe. Defendant entered a store and returned with a pipe, which he gave to Plummer. Whele gave defendant $5 for the pipe. After Plummer and Whele walked away, they were detained by the police.

Plummer also remembered talking with Cooley that day. Cooley asked Plummer if he had purchased cocaine, and he answered that he had not. Cooley also asked where the cocaine had come from, and Plummer responded that he did not know who had the cocaine. Plummer did not remember telling Cooley that Whele had approached him and wanted to buy crack cocaine or that he agreed to help Whele buy cocaine if Whele would smoke it with him. He also denied that he told Cooley that Whele gave him $20, that he knew a man selling crack on Santa Clara Street, that he had previously bought crack from this man, or that he approached the man, gave him $20, and the man gave him crack in return. However, Plummer admitted that he had pleaded guilty to possession of cocaine on June 24, 2005.

In response to the prosecutors questions about snitches, Plummer testified that he did not know what happened to snitches. Plummer also admitted that he had suffered a prior conviction for forgery and had been arrested for drug offenses three times in the past.

On recall, Cooley testified that Plummer had initially told him that he purchased a crack pipe and Whele had purchased crack cocaine. Plummer subsequently told Cooley that Whele had approached him about buying crack cocaine, and gave him $20. Whele told Plummer that he would smoke the crack cocaine with him if Plummer assisted him. Plummer then took Whele to purchase crack cocaine from defendant. Plummer said that he knew he could purchase crack cocaine from defendant, because he had previously purchased it from him. When Plummer and Whele realized that they did not have a crack pipe, they returned, and bought one from defendant.

Cooley also testified that it would be difficult for an individual who testified against a seller to purchase drugs again. These individuals would also suffer verbal and physical attacks.

II. Discussion

Defendant contends that his trial counsel rendered ineffective assistance, because he did not object to a modified version of CALJIC No. 2.50.

In order to demonstrate ineffective assistance, a defendant must first show counsels performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] (People v. Williams (1997) 16 Cal.4th 153, 215.) Once he has met this burden, he must establish prejudice. (Ibid.)

Prior to trial, the trial court ruled that the introduction of evidence of defendants prior convictions for selling drugs in San Jose was inadmissible under Evidence Code section 1101, subdivision (b). After the conclusion of evidence, the trial court indicated that it intended to give a heavily modified version of CALJIC No. 2.50 so as to protect the defendant.

The trial court later instructed the jury: Evidence has been introduced that may indicate that the defendant committed a crime or crimes other than that for which he is on trial. This evidence if believed may not be considered by you to prove that the defendant is a person of bad character or that he has a disposition to commit crimes. [] It may be considered by you only for the limited purpose of explaining actions on the day of the alleged crimes for which the defendant is now on trial. For example, the alleged reason witness Plummer approached the defendant. [] For the limited purpose for which you may consider such evidence you must weigh it in the same manner as you do all other evidence in the case. You are not permitted to consider such evidence for any other purpose. Trial counsel did not object to this instruction.

Defendant contends that trial counsel was ineffective for failing to object, because the instruction allowed the jury to consider evidence of his prior crimes as showing his propensity to commit the charged offenses. We disagree.

Here Plummer told Cooley he knew he could purchase crack cocaine from defendant, because he had previously purchased it from him. Evidence of a criminal defendants prior act is generally inadmissible to prove his or her disposition to commit such an act. (Evid. Code, 1101, subd. (b).) Thus, the trial court correctly informed the jury that it could not consider the prior crimes evidence to prove that the defendant is a person of bad character or that he has a disposition to commit crimes.

Contrary to defendants claim, the trial court did not contradict itself in the second paragraph of the instruction. Instead, the trial court emphasized that the evidence was admitted for a limited purpose, that is, to focus the jurys attention on Plummers reason for contacting defendant, not on defendants disposition to sell drugs on that particular day. The jury was also instructed not to single out any particular sentence or any individual point or instruction and ignore the others. We must presume that the jury was composed of intelligent people who were capable of understanding and correlating all instructions. (People v. Tatman (1993) 20 Cal.App.4th 1, 11.) When both paragraphs of the instruction are considered together, they correctly set forth the applicable law. Accordingly, trial counsel did not render ineffective assistance by failing to object to this instruction.

III. Disposition

The judgment is affirmed.

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Mihara, J.

WE CONCUR:

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Bamattre-Manoukian, Acting P.J.

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Duffy, J.

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