P. v. Harrell

Filed 7/26/07 P. v. Harrell CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Deirdre H. Hill, Judge. Affirmed.

Linda Casey Mackey, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Susan Lee Frierson, Deputy Attorney General, for Plaintiff and Respondent.

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Stephen Harrell appeals from the judgment entered following a jury trial in which he was convicted of possession of cocaine and misdemeanor possession of a smoking device and marijuana. In a bifurcated bench trial, he was found to have sustained prior felony convictions, including one under the Three Strikes law. Defendant contends that the trial court prejudicially erred in ordering that he submit to a physical examination and instructing the jury on his refusal to do so, and in reconsidering its original finding that the evidence was insufficient to prove the prior felony convictions. We affirm.

BACKGROUND

On the morning of May 27, 2005, Inglewood Police Officer Patrick Manning was on patrol on West Century Boulevard when he observed defendant coming out of a liquor store. Defendant appeared to notice Manning, who got out of the patrol car and walked in defendants direction. Defendant moved his hand toward his waistband, and a glass smoking device fell to the ground.

Defendant was detained and transported to the police station, where he was searched in the presence of Manning and two other Inglewood police officers. A plastic bag containing marijuana was found in one of defendants pockets. When defendant was completely disrobed, the officers observed a lump protruding from beneath the foreskin of defendants uncircumcised penis. Manning described the lump as maybe the size of a marble, and probably the size of a round looking object, the size of a nickel, maybe a little smaller than a nickel, protruding out. A second officer described it as maybe like two small lumps kind of like back to back right on top of the defendants penis and a bulge or two lumps. The third officer described it as a lump, [m]aybe a quarter size. The three officers testified that photographs of defendants penis that had been received in evidence accurately depicted how the penis looked at the time of the search.

Manning asked defendant about the object, and defendant said it was nothing. Manning next asked defendant to pull back his foreskin. Defendant at first stated that his foreskin did not go back but then complied with Mannings request, causing a black baggie to fall to the floor. Inside the baggie were four individually wrapped pieces of rock cocaine and a second baggie that contained a larger piece of cocaine, totaling approximately 2.24 grams of solid substance.

In defense, additional photographs of defendants penis, taken by defense investigator Calistro Rodriguez, were placed in evidence. Rodriguez testified that defendant was circumcised. When during the photograph session Rodriguez asked defendant to try to pull the skin from the shaft of his penis down over the head, Rodriguez observed defendant get the skin and attempt to hold it over the head of the penis. He got a little over the rim of the head. That was as far as he could go, and he let go and the skin went back.

In rebuttal, it was stipulated that after presentation of the defense case, the court ordered that defendant submit to an examination of his penis by a medical doctor. When [the doctor] arrived, the defendant refused to let the doctor do any examination of his genitals in violation of the Court order.

DISCUSSION

1. Physical Examination and Jury Instructions

a. The record

At a pretrial hearing, defense counsel stated she would attack the credibility of the officers who conducted the search, asserting it was unreasonable that something as large as the baggies of cocaine defendant was charged with possessing could have been secreted under the foreskin of his penis. Defense counsel suggested that a physical inspection might be required. The prosecutor stated he did not object to photographs being introduced in evidence and would discuss the subject with defense counsel.

At a later pretrial proceeding, defense counsel asked for an in camera hearing. There, counsel stated she had just found out that defendant was circumcised. She further stated that photographs of defendants penis would constitute impeachment.

Following the parties opening statements, the court admonished defendant that if he submits pictures of his private parts, [he] may potentially be subjecting himself to inspection and manipulation by the People as well. The prosecutor stated that if defendant submitted photographs of his penis, the prosecution would request permission to take its own photographs and place them in evidence.

Later, while Officer Manning was on the stand during presentation of the prosecutors case-in-chief, the prosecutor filed a motion requesting that defendant submit to having photographs taken of his penis. The prosecutor argued that he was entitled to have photographs to which Officer Manning could refer while testifying. Defense counsel told the court that defendant was upset at the idea of someone touching his penis, but that the prosecutor had told defense counsel it is [the Peoples] intention not to have anybody touch [defendant], just to have him display his penis and have it photographed from different sides, and to the extent that it needs to be moved just for the ease of taking photographs, that they will allow the defendant to do that himself. The court added, And if thats not adequate, then we can discuss something more. But at this point, then, it is understood defendant will have an opportunity to manipulate himself at the direction of the People.

The prosecutors motion was granted and photographs were taken of defendants penis. Manning as well as the two other officers involved in the search referred to these photographs while testifying for the prosecution.

After defendant presented his case, the prosecutor requested that the court grant an order for a medical doctor to examine defendant in the holding cell over the lunch hour so the doctor could render an opinion in court as to whether defendant is circumcised. Defense counsel asked to be present at the examination but did not object. The prosecutors request was granted. Nevertheless, when the doctor arrived to conduct the examination, defendant refused to submit to it.

Following defendants refusal, the discussion turned to possible sanctions and remedies. Defense counsel noted that she had explained the order for physical examination to defendant and told him of the possible consequences of his refusal to comply. The prosecutor requested that a stipulation be required regarding defendants failure to allow the examination and that the jury be instructed on consciousness of guilt. The trial court expressed the view that defendants failure also constituted a discovery violation, stating: Well, it appears to me that inspecting the defendants physical parts in this case potentially manipulating it, which the People hadnt done previously, is discovery thats allowed. And by failing to comply with it, its withholding a concealment of potential evidence. [] Directly the issue in this case, the defense has made clear, is the issue has to deal with how far the foreskin could be manipulated and whether or not its possible to hold contraband within that area. Defendant disagreed that this was a discovery issue and further noted that [t]he People did not say what they were going to do is ask the doctor to determine the pliability of the foreskin. The Peoples proffer was to determine whether or not the defendant was circumcised. The court responded that its order had indicated the physical examination including manipulation of the foreskin.^[1]

Ultimately, in addition to the stipulation noted in the Background section of this opinion, the jury was instructed under CALJIC No. 2.06 that [i]f you find that the defendant attempted to suppress evidence against himself in any manner, such as by concealing evidence by failing to permit a Court ordered physical examination by a licensed physician, this attempt may be considered by you as a circumstance tending to show a consciousness of guilt. However, this conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.

And although the prosecutor indicated the stipulation would be sufficient in lieu of an instruction on failure to produce evidence, the court instructed the jury on its own motion under CALJIC No. 2.28 that defendant has failed to cooperate with a Court ordered physical examination of penis and foreskin by a licensed physician, thereby concealing evidence. The Defendants concealment was without lawful justification. Concealment of evidence may deny a party a sufficient opportunity to subpoena necessary witnesses or produce evidence which may exist to rebut the non-complying partys evidence. [] The weight and significance of any concealment are matters for your consideration. However, you should consider whether the concealed evidence pertains to a fact of importance, something trivial or subject matters already established by other credible evidence.

b. Analysis

We reject defendants contention that the trial court prejudicially erred.

In Winston v. Lee [(1985)] 470 U.S. 753 [105 S.Ct. 1611], the prosecution sought to compel a defendant suspected of attempted armed robbery to undergo a surgical procedure under general anesthesia to remove a bullet lodged in his chest. The Supreme Court stated: The reasonableness of surgical intrusions beneath the skin depends on a case-by-case approach, in which the individuals interests in privacy and security are weighed against societys interests in conducting the procedure. In a given case, the question whether the communitys need for evidence outweighs the substantial privacy interests at stake is a delicate one admitting of few categorical answers. [Citation.] Noting the government established probable cause for the search and provided adequate procedural protections, the Supreme Court focused on balancing the extent of the intrusion on the defendants privacy interests against the prosecutions need for the evidence. [Citation.] The Supreme Court concluded the prosecution did not establish searching for evidence of the crime by the contemplated surgery would be reasonable under the Fourth Amendment. [Citation.] The court found the intrusion on defendants privacy interests was severe although the operations medical risks were apparently not extremely severe. [Citation.] However, the court foundwhile the bullet might be useful to the prosecutionthe strength of other evidence in the case undercut the governments argument surgical retrieval of the bullet was necessary. [Citation.] (People v. Fiscalini (1991) 228 Cal.App.3d 1639, 16431644.)

Utilizing the balancing test of Winston v. Lee, supra, 470 U.S. 753, the court in People v. Fiscalini, supra, 228 Cal.App.3d at page 1645, held that after a defendant suspected of driving under the influence had provided a urine sample, it was error to require the defendant to submit to having his blood drawn because there was no showing that the defendants blood-alcohol level could not be adequately measured by the urine sample alone. In Nelson v. City of Irvine (1998) 143 F.3d 1196, 12001202, the court came to a similar conclusion with regard to defendants who had submitted to breath tests for blood-alcohol.

Relying on Fiscalini and Nelson, both supra, defendant asserts that because he had already submitted to having his penis photographed, the order that he submit to a further physical examination violated his rights of personal privacy and bodily integrity. But in contrast to defendants cases, the additional examination here would not have been merely duplicative. The prosecution had introduced testimonial and photographic evidence of what appeared to be defendants uncircumcised penis. Defendant had directly challenged this with testimonial and photographic evidence of what appeared to be his circumcised penis. Neither partys evidence had been presented by witnesses with medical or other expert credentials, nor did defendant object to the physical examination when it was ordered. Thus, irrespective of whether the order for the physical examination specifically authorized manipulation of defendants penis by a medical doctor, such examination was the only way to resolve the conflict as to the true nature of defendants physiology. We agree with the trial courts assessment that the intrusion inherent in an examination by a medical doctor was outweighed by the prosecutions need for the evidence. Under the balancing test of Winston v. Lee, supra, 470 U.S. 753, the order requiring the physical examination was proper.

Defendant further asserts that the trial court erred in denying his request to delete the words attempted to suppress evidence against himself in any manner from the CALJIC No. 2.06 instruction. We disagree. Because the physical examination was properly ordered, defendants refusal to submit himself to that examination constituted an attempt to suppress evidence. The CALJIC No. 2.06 instruction to that effect was therefore proper. (See People v. Farnam (2002) 28 Cal.4th 107, 164.)

With respect to instruction under CALJIC No. 2.28, we note that defendant violated a direct court order and failed to submit to an examination that would have established (or undermined) the evidentiary basis of his defense. But apart from the CALJIC No. 2.28 instruction, the stipulation on defendants refusal to be examined established that defendant had violated a court order by that refusal. And the properly given CALJIC No. 2.06 instruction informed the jurors that if they found defendant had failed to submit to the court-ordered examination, consciousness of guilt could be inferred if the refusal constituted an attempt to suppress evidence, and the weight and significance of defendants conduct in this regard were for the jury to decide. Thus, even assuming CALJIC No. 2.28 should not have been given, it added nothing of significance to what the jury had already been told and must be deemed harmless.

2. Reconsideration of Finding on Prior Convictions

Following the verdict, a bench trial was held on defendants prior convictions. The court considered Penal Code section 969b packets that had been presented as proof and concluded that the evidence was insufficient to support the priors, noting that as a consequence defendant could be eligible for probation and drug treatment under Proposition 36. At a later hearing at which the focus was the issue of eligibility under Proposition 36, the prosecutor further argued that the trial court had erred in finding the evidence insufficient to prove the prior convictions. After additional consideration, the trial court vacated its earlier ruling and found the alleged prior convictions true beyond a reasonable doubt.

Through his counsel, Deputy Public Defender Eleanor Schneir, defendant protested. Counsel filed a request that the trial court (Hon. Deirdre H. Hill) reconsider its true finding on the prior convictions, asserting that there may have been external pressures brought to bear upon [the] court. The request was supported by the declaration of Ethna Burns, the Deputy in Charge of the Inglewood Public Defenders Office. In the declaration, Burns stated that the previous month, the prosecutor in charge of the District Attorneys Office in Inglewood told her that he wanted to have a meeting with Judge Meigs regarding filing blanket affidavits against Judge Hill in all criminal matters. The prosecutor mentioned two incidents to Burns, one of which involved Judge Hills finding the prior convictions not true in this case. A meeting was held with Judge Meigs, who did indicate he would talk to Judge Hill.

The record does not reflect the existence of any oral proceedings or rulings by Judge Hill on defendants request for her to reconsider her true findings on defendants prior convictions.

On appeal, defendant concedes that retrial on the issue of prior convictions is not barred under the United States or California Constitutions. (Monge v. California (1998) 524 U.S. 721, 730 [118 S.Ct. 2246]; People v. Hernandez (1998) 19 Cal.4th 835, 836837, 842843, disapproved on another ground in People v. Seel (2004) 34 Cal.4th 535, 548550 & fn. 6 [trial court reconsidered and reversed finding that defendant had not suffered a prior serious felony conviction; Court of Appeal concluded there was no relevant distinction between this case and Monge].) Defendant nevertheless contends that reconsideration of the prior convictions was improper because there is nothing in the decisions that suggest[s] events that occur outside the court can challenge and lead to vacating findings favorable to the defenses.

While defendant may be correct as a general matter of law, [t]he very settled rule of appellate review is a trial courts order/judgment is presumed to be correct, error is never presumed, and the appealing party must affirmatively demonstrate error on the face of the record. [Citations.] (People v. Davis (1996) 50 Cal.App.4th 168, 172.) Defendant has not carried his burden of demonstrating error on this record. Accordingly, his contention must be rejected.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

MALLANO, Acting P. J.

We concur:

ROTHSCHILD, J.

JACKSON, J.^*

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^[1] In fact, the order for the examination by the medical doctor did not mention manipulation of the foreskin. Rather, as noted above, the subject of manipulation was discussed when the prosecutor requested permission to photograph defendants penis during presentation of the case-in-chief.

^* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.