P. v. Foster

Filed 2/23/07 P. v. Foster CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, David M. Mintz, Judge. Affirmed.

A. William Bartz, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

______________________________________________

Willie Foster (Foster) appeals from the judgment entered following a jury trial which resulted in his conviction of possession for sale of cocaine base (Health & Saf.,  11351.5) and his admissions he had previously been convicted of a serious or violent felony within the meaning of the Three Strikes law (Pen. Code, 667, subds. (b) to (i), 1170.12, subds. (a) to (d)), and had previously served two separate prison terms (Pen. Code,  667.5, subd. (b)). The trial court sentenced Foster to eight years in prison.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

Viewed in accordance with the usual rules of appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303‑1304), the evidence established that at approximately 11:15 p.m. on December 12, 2005, Los Angeles Police Officer Steve Rodriguez (Rodriguez) and two fellow officers, McDonagh and Silva, were on patrol near the intersection of 7th and Main Streets, an area known for high narcotic activity. The officers were in full uniform and were driving in a marked patrol car. Rodriguez was sitting in the rear passenger seat and he noted that there were approximately ten pedestrians in the area.

As the officers drove slowly by, Rodriguez observed Foster standing in close proximity to another individual. Fosters hand was clenched and the other individual was holding money. The officers stopped the patrol car when they were between five and ten feet from Foster and, as Rodriguez began to get out of the car, he observed the individual standing near Foster hand to Foster some folded currency. In return, Foster handed to the individual an off-white solid resembling rock cocaine base. The individual standing with Foster looked up, apparently saw Rodriguez, handed the off-white rock back to Foster and walked off. Foster then looked in Rodriguezs direction and, as the officer approached him, began walking in a fast pace southbound on Main Street.

Rodriguez followed Foster. When he was approximately three feet from Foster, Rodriguez observed Foster remove a baggie or plastic bindle from his front pants pocket and place it in his mouth. When Foster then began to run, Rodriguez followed. At the intersection of 7th and Los Angeles Streets, both men tripped and fell. As Foster got up, Rodriquez observed him remove the baggie from his mouth and throw it into a nearby storm drain. After Foster had run another approximately 25 feet from the intersection, Officers McDonagh and Silva caught up with him and took him into custody.

In the meantime, Rodriguez had walked over to the storm drain. With the aid of a flashlight, he could see the plastic baggie Foster had thrown there. Rodriguez and another officer, Antonio Gutierrez (Gutierrez), removed the cover to a manhole leading to the storm drain. Gutierrez then retrieved the baggie, which contained what appeared to be narcotics, and several small rocks which appeared to have fallen out of a hole in the baggie. In total, the officers recovered what they estimated to be approximately $50 worth of what was later determined to be 2.45 grams of a substance containing cocaine base.

Officer Silva and another officer conducted a search of Foster. From Fosters jacket pockets, the officers recovered $168 in crumbled or folded currency, consisting of two 20 dollar bills, one ten dollar bill, 10 five dollar bills and 68 one dollar bills.

Based on the location of the arrest, his observation of the transaction between Foster and the other individual, the amount and denominations of currency recovered from Foster, the amount of cocaine recovered, and the fact that Foster possessed no drug paraphernalia with which to ingest narcotics, Rodriguez formed the opinion Foster possessed the cocaine base for sale.

2. Procedural history.

Following a preliminary hearing, on January 10, 2006 Foster was charged by information with possession for sale of cocaine base in violation of Health and Safety Code, section 11351.5. It was further alleged Foster had suffered five prior convictions for serious or violent felonies within the meaning of the Three Strikes law (Pen. Code, 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and had served three prior prison terms (Pen. Code, 667.5, subd. (b)). Foster entered a plea of not guilty to possession for sale of cocaine base and denied the prior conviction and prison term allegations.

On February 9, 2006, Foster filed a motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), for discovery of materials related to any investigations made with regard to Officer Rodriguezs honesty, his fabrication of evidence or his filing of false police reports. An in camera hearing was held on the motion on March 6, 2006, at the conclusion of which the trial court determined there existed discoverable material. The trial court ordered such material disclosed by March 10, 2006.

On April 3, 2006, Foster filed a supplemental Pitchess motion with regard to Officer Gutierrez. On April 14, 2006, real party in interest, the Los Angeles Police Department, filed opposition to Fosters motion. At the April 21, 2006 in camera hearing held on the matter, the trial court determined there existed no discoverable material.

The case was called for jury trial on April 27, 2006. At proceedings held on May 2, 2006, Fosters motion to bifurcate from the rest of the trial the proceedings regarding his prior convictions and prison terms was granted. Following the presentation of the Peoples case in chief, the trial court denied Fosters motion for a judgment of acquittal pursuant to Penal Code section 1118.1.

During a discussion regarding jury instructions, Fosters counsel objected to the giving of an instruction indicating the jury could consider a defendants flight as awareness of his guilt. The trial court overruled counsels objection to the instruction, stating, I do think theres evidence from which the jury could conclude that there was flight. And I think under those circumstances Im required to give that instruction.

During argument, Fosters counsel directed the jury to what counsel considered inconsistencies in Officer Rodriguezs testimony. Counsel stated, Well, he [Officer Rodriguez] was in the car when he saw the transaction. Little further on, well, he was getting out of the car when he saw the transaction. And again further on in the testimony at the preliminary hearing, well, he was already out of the car when he saw the transaction. Later, Fosters counsel again addressed the credibility of Officer Rodriguez by stating,  . . . I would submit to you that based on the questions that were brought up by Officer Rodriguezs testimony, the transaction that may or may not have taken place, the rocks that may or may not have been thrown in there [the drain] that only he could see, that only he saw tossed, that were simply kind of suspiciously just too perfectly placed in this drain, if the case rises and falls with Rodriguez, Ladies and Gentlemen, I would submit to you that the case simply has to fail.

Following the completion of instructions and argument, the jury found Foster guilty of possession for sale of cocaine base in violation of Health and Safety Code, section 11351.5.

Foster admitted having been previously convicted of the serious or violent felony of robbery and that he had previously served two separate prison terms.^[1]Fosters counsel then made a motion requesting the trial court to strike the prior conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. After hearing argument on the matter, the trial court denied the motion.

The trial court sentenced Foster to the middle term of four years in prison, doubled the term pursuant to the Three Strikes law, then, in furtherance of justice pursuant to Penal Code section 1385, struck the findings Foster had served two prior prison terms. In total, the trial court sentenced Foster to eight years in prison.

Foster timely filed a notice of appeal on May 3, 2006.

CONTENTIONS

After examination of the record, Fosters appellate counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.

By notice dated December 22, 2006, the clerk of this court advised Foster to submit within 30 days any contention, ground of appeal or argument he wished this court to consider. In a letter filed on January 30, 2007, Foster responded. He asserts (1) his trial counsel was ineffective and (2) his sentence was improper.

DISCUSSION

1. Fosters counsel was not ineffective.

Foster claims his trial counsel was ineffective for failing to aggressively attack Officer Rodriguezs credibility, for failing to emphasize that, at the time of the alleged narcotics transaction, he, Foster, had not been standing in a crowd of people, and for failing to inform the jury that he, Foster, had run from Rodriguez because Rodriguez had failed to identify himself as a police officer.

In assessing claims of ineffective assistance of trial counsel, we consider whether counsels representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.] (People v. Carter (2003) 30 Cal.4th 1166, 1211; see Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674].) If the defendant makes an insufficient showing with regard to either component, the claim must fail. (People v. Holt (1997) 15 Cal.4th 619, 703.)

A review of the record indicates that, both during his questioning of Rodriguez and during argument, Fosters counsel made a point of directing the jurys attention to inconsistencies in Rodriguezs testimony. It cannot be said counsels performance was deficient in this regard.

Foster asserts his trial counsel failed to emphasize that Foster was not standing in the middle of a crowd when the alleged transaction occurred and thus all three police officers, not just Rodriguez, should have observed the narcotics transaction had it taken place. The evidence, however, simply indicates there were approximately ten other pedestrians in the area. Moreover, there could have been any number of reasons why Rodriguezs partners did not observe the narcotics transaction, including that, at that particular moment, their attention simply was focused elsewhere.

Finally, counsel cannot be faulted for failing to inform the jury that Foster ran from Rodriguez because Rodriguez had not identified himself as a law enforcement officer. On the night of Fosters arrest, Rodriguez and his partners were in full uniform and driving a marked patrol car. Under these circumstances, Foster could not have helped but have known Rodriguez was a police officer.

2. Foster was properly sentenced.

Foster asserts his sentence is unlawful because it was enhanced by a prior conviction which was impl[e]mented without a jury. However, Foster, after waiving his right to have a jury or the trial court determine the truth of the alleged prior conviction, waiving his right to confront and cross-examine witnesses, waiving his right against self-incrimination and waiving his right to present a defense, admitted having suffered the conviction. Whether that prior conviction was obtained by way of a jury trial, a court trial or a plea is irrelevant.

REVIEW ON APPEAL

We have examined the entire record submitted by Foster and are satisfied that Fosters appellate counsel has complied fully with counsels responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284 [145 L.Ed.2d 756]; People v. Wende (1979) 25 Cal.3d 436, 443.)

DISPOSITION

The judgment is affirmed.

CROSKEY, J.

We Concur:

KLEIN, P. J.

KITCHING, J.

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^[1] The People chose not to proceed on the remaining prior conviction and prison term allegations.