P. v. Lam

Filed 3/14/07 P. v. Lam CA1/1d

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

On August 27, 2003, a seven-count indictment was filed against Ryan Ducut, Diem Lam, and Tai Tran. Ducut was charged with three counts of selling, distributing, or transporting a controlled substance (Health & Saf. Code, 11379, subd. (a)), three counts of possessing a controlled substance for sale (Health & Saf. Code, 11378), and one count of conspiring with Lam and Tran to sell, distribute and transport a controlled substance. (Pen. Code, 182, subd. (a)(1).) Tran and Lam were each charged with one count of conspiracy, one count of transportation of a controlled substance, and one count of possession for sale of a controlled substance.

On May 4, 2005, after a joint trial, the defendants were found guilty by jury on all charged counts. The trial court admitted Lam and Tran to probation for a period of three years, and ordered them to serve 180 days in county jail. Ducut was sentenced to four years in state prison.

On appeal, Tran argues that the trial court erred in refusing to allow him to impeach a key prosecution witness with evidence of three prior misdemeanor convictions. He also claims that the court erred in refusing to give CALJIC No. 2.28, and that cumulative errors justify reversal. Ducut and Lam have filed appeals pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

James Miele agreed to become an informant for the federal Drug Enforcement Agency (DEA) in February 2001, as a means of avoiding prosecution in connection with his arrest for cultivating marijuana. He informed DEA Agent Tolliver that Ducut was selling ecstasy. Tolliver asked Miele to contact Ducut and arrange to purchase some ecstasy.

On February 22, 2001, Tolliver kept Miele under surveillance while Miele purchased 90 pills from Ducut. Miele obtained 100 more pills from Ducut on June 22, 2001, also while under surveillance. Both batches of pills later tested positive for MDMA, a chemical component of ecstasy.

In December 2001, Ducut agreed to sell Miele 1,000 pills for $10,000. The transaction was to be conducted in a parking garage, where Ducut was employed as a toll booth attendant, near the Bay Area Rapid Transit (BART) station in Pleasant Hill.

On the afternoon of December 18, 2001, Miele and Tolliver waited in a parked car near the parking garage. Miele communicated with Ducut by cell phone. Ducut told Miele that a young Asian male would make the delivery. DEA officers were positioned around the parking lot to observe the transaction.

Earlier that day, Ducut told Tran that he would pay him $250 to make the delivery to Miele. Tran picked up a blue plastic bag containing pills in Emeryville and drove to the BART station. When he arrived, he asked his cousin, Lam, to meet him at the BART station because he did not want to conduct the transaction by himself and because he needed to borrow some money from Lam. Lam drove to the station in a black Honda and Tran arrived in a white Honda. Ducut waved at Lams car as it entered.

Lam exited his vehicle and walked behind Trans car to the trunk. Tran opened his trunk, reached inside to handle the bag, put the bag back inside and closed the trunk. Officer Chu approached Tran, who initially denied that he drove to the BART station. Chu then asked Tran for the keys to the white Honda. Chu found a blue plastic bag containing about 1,000 pills in the trunk along with a bag of marijuana. The defendants were arrested. Samples taken from the blue plastic bag later tested positive for MDMA.

After being arrested, Ducut and Lam declined to speak with the officers on advice of counsel. Tran was advised of his Miranda[1] rights and was interviewed by Chu and Tolliver. The interview was not recorded, but it was written up as a statement, which Tran signed. In his statement, he reported that a man named Donny offered him $250 to make a delivery. He retrieved the plastic bag from the parking lot near the Home Depot in Emeryville. He knew that the package contained stuff or E. Ecstasy is commonly referred to as X or E. When he opened the trunk of his car at the BART station, he picked up the bag. He decided not to put the bag in Lams car because he did not want to get him in trouble.

A prosecution witness testified at trial that mules, persons who are used by dealers to transport drugs, usually know they are carrying contraband. The same witness testified that the pattern of cell phone calls between the three defendants prior to their arrests demonstrated that the parties were finalizing the details of the drug transaction.

The defendants moved to sever their trial from that of the other defendants. The trial court denied the motions. The court also overruled defendants objection to the introduction of subpoenaed telephone records, ruling that they were business records. The court denied a Wheeler-Batson motion[2] made by the defense after the prosecution excused an African-American juror.

During the trial, Lam moved to dismiss the charges against him pursuant to Penal Code section 1118.1, on the grounds that the prosecution failed to prove that a conspiracy existed when he committed the alleged overt acts. The motion was denied. The court also denied his motion for mistrial based on prosecutorial misconduct.

During deliberations, jurors sent four separate requests to the court, reflecting their concerns with respect to unanimity regarding overt acts, the definition of offer, and the quantum of knowledge required regarding the nature of the controlled substance.

Tran filed an appeal raising the issues noted above. We address his appeal first.

DISCUSSION

I. Impeachment with Prior Misdemeanor Convictions

Tran claims that the trial court abused its discretion in prohibiting him from impeaching Mieles testimony with evidence of conduct underlying three prior misdemeanor convictions. The Attorney General counters that the court did not abuse its discretion because the convictions were over 10 years old and did not all involve crimes constituting moral turpitude. The Attorney General also argues that Mieles testimony did not directly incriminate Tran.

The court ruled that the defense could impeach Miele with evidence that he had been arrested for cultivation of marijuana in 2004, and that the jury could be told that he was working off a 2000 marijuana cultivation charge when Tran was arrested. The court also allowed evidence of a 1997 conviction for cultivation of marijuana, but granted the prosecutions request to prohibit the defense from impeaching Miele with conduct underlying his 1994 conviction for driving under the influence (Veh. Code,  23152), and his convictions in 1992 for making terrorist threats (Pen. Code, 422) and stalking (Pen. Code, 646.9).

The court reasoned that the 1992 convictions were too remote to be sufficient probative value as to his credibility and that the underlying conduct did not pertain directly to Mieles propensity for honesty. The court also determined that the 1994 conviction for driving under the influence was not relevant because it did not involve a crime of moral turpitude and was over 10 years old.[3]

Conduct underlying a misdemeanor conviction may be admissible to impeach a witness. (Wheeler, supra, 4 Cal.4th 284, 292, 295296.) Admission of such evidence, however, is subject to the trial courts discretion to exclude it under Evidence Code section 352. . . . [A] trial courts broad latitude in this respect will not be upset on appeal absent a showing of abuse of discretion. (People v. Robinson (2005) 37 Cal.4th 592, 626.)[4] We will find an abuse of discretion only where the resulting injury manifests a miscarriage of justice; a trial court abuses its discretion only when it exceeds the bounds of reason, all of the circumstances being considered. (People v. Chavez (2000) 84 Cal.App.4th 25, 30.)

In [Wheeler], the Supreme Court considered whether a witness in a criminal proceeding might be impeached with misdemeanor conduct. The court held that evidence of past misdemeanor conduct bearing on a witnesss veracity was admissible in a criminal proceeding subject to the trial courts discretion. [Citation.] The court concluded that [m]isconduct involving moral turpitude may suggest a willingness to lie [citations], and this inference is not limited to conduct which resulted in a felony conviction. . . . [] Of course, the admissibility of any past misconduct for impeachment is limited at the outset by the relevance requirement of moral turpitude. [Citation.] Immoral conduct is admissible for impeachment even though the witness was not convicted, or even if the conduct did not constitute a criminal offense. [Citation.] Admission of such prior misconduct evidence remains subject to the trial courts discretion under Evidence Code section 352, which empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues. [Citation.] (People v. Rivera (2003) 107 Cal.App.4th 1374, 1380.)

When exercising its discretion under Evidence Code section 352, a court must always take into account, as applicable, those factors traditionally deemed pertinent in this area. . . . But additional considerations may apply when evidence other than felony convictions is offered for impeachment. In general, a misdemeanoror any other conduct not amounting to a felonyis a less forceful indicator of immoral character or dishonesty than is a felony. Moreover, impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value. (Wheeler, supra, 4 Cal.4th 284, 296297, fn. omitted.)

As to two out of three of Mieles misdemeanor convictions, it is unclear whether they involve moral turpitude. While [a] violation of Penal Code section 422, making terrorist threats, has been deemed a crime of moral turpitude (People v. Chavez, supra, 84 Cal.App.4th 25, 30), Tran concedes that he can find no cases in support of his contention that misdemeanor driving under the influence and stalking constitute crimes of moral turpitude.

Even assuming, for purposes of this appeal, that all three misdemeanor convictions involve crimes of moral turpitude, we find no abuse of discretion. The convictions were old and were not probative of Mieles veracity as the crimes did not relate directly to his propensity for honesty.

In any event, any error in excluding evidence regarding the Mieles misdemeanor offenses was harmless. Error in the admission of impeachment evidence justifies reversal only if it resulted in a miscarriage of justice (Evid. Code, 354). A judgment may be overturned only if it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836.)

The evidence of Mieles more recent marijuana-related convictions, and the fact that he received favorable treatment in exchange for facilitating the arrests in this case, provided the jury with sufficient grounds to view his testimony with caution. Thus, contrary to Trans assertion, Miele was not testifying under a false aura of veracity.[5] (See People v. Chavez, supra, 84 Cal.App.4th 25, 28.)

Moreover, even without Mieles testimony, there was strong evidence implicating Tran, including the fact that the ecstasy pills were found in his car and that he signed a written statement implicating himself in the drug transaction. We therefore find it is not reasonably probable that, had Tran cross-examined Miele concerning his misdemeanor offenses, the jury would have reached an outcome more favorable to Tran. (People v. Watson, supra, 46 Cal.2d 818, 836; Clifton v. Ulis (1976) 17 Cal.3d 99, 105106.)

Trans reliance on People v. Vindiola (1979) 96 Cal.App.3d 370, 379, is misplaced. Vindiola pre-dates Wheeler and involved a prior conviction for vehicle theft, a felony. Moreover, the credibility of the witness in Vindiola was critical to the defense as the defendant alleged that the witness was the actual perpetrator. (Ibid.)

We similarly reject Trans claim that the trial courts exclusion of the proffered evidence violated his federal constitutional rights to confront and cross-examine witnesses. (See Delaware v. Van Arsdall (1986) 475 U.S. 673, 680.) Trans principal defense was that he was not aware of the nature of the substance he was transporting. Mieles testimony was only marginally relevant to this defense as he never had any contact with Tran. Courts have long observed that, [a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accuseds [state or federal constitutional] right to present a defense. (People v. Hall (1986) 41 Cal.3d 826, 834; see also People v. Lewis (2001) 26 Cal.4th 334, 372374.)

II. Failure to Give CALJIC No. 2.28

Tran next contends that the court abused its discretion in denying his request to instruct the jury with CALJIC No. 2.28 after the prosecution allegedly committed three discovery violations by belatedly disclosing: (1) Tollivers raw notes of Trans interrogation, (2) Chus realization that during his grand jury testimony he had made an error with respect to whether Lam had pulled his Honda into the parking space nose first, and (3) Mieles denial that he sold marijuana to another person in 2000.[6] The details of the alleged violations follow.

During a hearing outside the presence of the jury, Tolliver testified that Tran had provided his phone number when he made his statement after his arrest. When asked how he recalled the phone number since it was not in his report, Tolliver stated that it was in his notes. Upon defense counsels request, the court ordered Tolliver to turn over his notes to the prosecutor, who was ordered to disclose any discoverable information to the defense. The prosecutor later indicated that he was unaware of the existence of those notes prior to the hearing.

During cross-examination, Chu stated that Tran pulled his Honda into a parking space nose first, while Lam pulled in rear end first. Lams attorney asked Chu if he had previously testified that both codefendants had pulled their cars in nose first. Chu stated that he had testified to that effect before the grand jury, and that he realized he had made a mistake while reviewing that testimony a few days prior to giving his trial testimony. He informed the prosecutor of the error shortly after he discovered it.

During the trial, the prosecution informed the court that Miele had denied that he was actually selling marijuana when he was arrested in 2000. Instead, he had claimed he was exchanging strains of marijuana plants with another grower. Trans counsel objected to the late disclosure, but the prosecuting attorney stated that he only learned of Mieles denial the previous evening.

We agree with the trial courts determination that the late discovery instruction was inappropriate under the circumstances. In particular, the court noted that the three disputed items were made available to the defense in a relatively timely manner. The court reasonably concluded that Tollivers notes were not discovered sooner because state enforcement officers typically do not retain their notes after they prepare a report, suggesting that the prosecution would not have been aware that Tolliver, as a federal officer, would have retained his notes. The court also found that the prosecution had promptly revealed Mieles statement denying that he sold marijuana in 2000. As to Chus erroneous grand jury testimony, the judge found that the information should have been turned over earlier but noted that the discrepancy was disclosed during Chus testimony and that he was properly cross-examined regarding it.

The trial court also observed that the proposed instruction has been criticized. Several decisions have noted CALJIC No. 2.28 is problematic. (People v. Lawson (2005) 131 Cal.App.4th 1242, 1247.) The instruction encourages speculation and offers insufficient direction. [A]lthough the jurors [a]re told [t]he weight and significance of any delayed disclosure are matters for your consideration, the instruction provides no guidance on how this failure might legitimately affect their deliberations. [Citations.] (People v. Saucedo (2004) 121 Cal.App.4th 937, 942.)

Finally, Penal Code section 1054.5, subdivision (b), does not require that a jury be informed of any discovery violation; the language is discretionary.[7] Under the circumstances, we conclude the trial court did not err in refusing to instruct the jury with CALJIC No. 2.28.

Even were we to find that the trial court here somehow abused its discretion in failing to deliver CALJIC No. 2.28, on this record such error would be harmless. The only fact that was not immediately disclosed was Chus realization that he had made an error in describing the placement of the parked cars in his grand jury testimony. As the trial court noted, this realization was brought up during Chus trial testimony and was used by defense counsel to impeach him. Moreover, the error itself was disclosed prior to trial as it was contained in the grand jury testimony. We do not believe that Tran would have received a more favorable result had CALJIC No. 2.28 been given.

III. Cumulative Error

Finally, Tran contends that the cumulative affect of the purported erroneous rulings compels reversal. As we have determined that the trial court did not err in any respect, we need not engage in a cumulative-error review.

VI. People v. Wende

Both Ducut and Lam filed timely notices of appeal. Their counsel have raised no issues and ask this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to the defendants, result in reversal or modification of the judgment. (People v. Wende, supra, 25 Cal.3d 436; see People v. Kelly (2006) 40 Cal.4th 106.) Neither defendant submitted any material in response to notice from counsel and this court of their right to file a supplemental brief. We have reviewed the entire record and conclude that no arguable issues are presented for review.

We do not find any errors in the grand jury proceedings, nor do we find any errors in the pretrial rulings.

There were no errors during the trial. The defendants were represented by counsel throughout the proceedings. The jury was properly selected. We find no errors in jury instructions. There is no evidence of prosecutorial misconduct.

We find no sentencing errors. Lam was sentenced to three years formal probation, conditioned on serving 180 days in county jail with credit for 34 days actually served, and on paying various fines and fees, to which he did not object.

The court stated proper reasons for denying probation to Ducut. The court concluded that the mitigating circumstances did not outweigh the aggravating circumstances and sentenced Ducut to the midterm of three years on the principle count of conspiracy. The court imposed one year for one count of sale of a controlled substance, to be served consecutively. Punishment of the remaining charges was stayed pursuant to Penal Code saection 654. Ducut received credit for 35 days actually served and was ordered to pay several fines and fees. He did not object to the fines and fees when imposed.

V. Disposition

The judgments are affirmed.

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[1]Miranda v. Arizona (1966) 384 U.S. 436.

[2]People v. Wheeler (1992) 4 Cal.4th 284 (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79.

[3] Although the 1992 and 1994 convictions occurred over 10 years before the arrest in this case, convictions remote in time are not automatically inadmissible for impeachment purposes. Even a fairly remote prior conviction is admissibleif the defendant has not led a legally blameless life since the time of the remote prior. (People v. Mendoza (2000) 78 Cal.App.4th 918, 925926; People v. Green (1995) 34 Cal.App.4th 165, 183.)

[4] Evidence Code section 352 provides: The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.

[5] Tran discounts the impeachment value of the marijuana cultivation arrests, suggesting that Miele was able to portray himself in a sympathetic light as he claimed he was growing marijuana for medical purposes only. This assertion, even if true, does not affect the relevancy, or lack thereof, of Mieles earlier misdemeanor convictions.

[6] CALJIC No. 2.28 provides, in part: The prosecution and the defense are required to disclose to each other before trial the evidence each intends to present at trial so as to promote the ascertainment of the truth, save court time and avoid any surprise which may arise during the course of the trial. [Concealment of evidence] [and] [or] [[D][d]elay in the disclosure 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.

Disclosures of evidence are required to be made at least 30 days in advance of trial. Any new evidence discovered within 30 days of trial must be disclosed immediately. In this case, the [People] [Defendant[s]] [concealed] [and] [or] [failed to timely disclose] the following evidence:

________________________.

Although the [Peoples] [Defendants] ____ [concealment] [and] [or] [failure to timely disclose evidence] was without lawful justification, the Court has, under the law, permitted the production of this evidence during the trial. [] . . . [] [If you find that the [concealment] [and] [or] [delayed disclosure] was by the prosecution, and relates to a fact of importance rather than something trivial, and does not relate to subject matter already established by other credible evidence, you may consider that [concealment] [and] [or] [delayed disclosure] in determining the [[believability] [or] [weight] to be given to that particular evidence[.] [[, or] [___].]

[7] Penal Code section 1054.5, subdivision (b), provides, in part: Upon a showing that a party has not complied with Section 1054.1 or 1054.3 and upon a showing that the moving party complied with the informal discovery procedure provided in this subdivision, a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure.