P. v. Phillips

Filed 8/3/06 P. v. Phillips CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Appellant Warren Phillips was convicted by jury of the sale or transportation of marijuana (Health & Saf. Code, § 11360, subd. (a); count 1) and the possession of marijuana for sale (Health & Saf. Code, § 11359; count 2). The court found true the allegations that appellant had three prior serious felony convictions (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served two prior prison terms. (Pen. Code, § 667.5, subd. (b).)^[1]

The court struck two of appellant's prior convictions and sentenced him to nine years in state prison. It imposed the upper term of four years on count 1, doubled under the Three Strikes law, plus a one-year enhancement pursuant to section 667.5, subdivision (b). Appellant was sentenced to a seven-year concurrent sentence on count 2. On appeal, he claims that the trial court's exclusion of certain evidence violated his due process right to present a defense. We disagree and affirm.

FACTS

On March 22, 2005, police officers Charles Garcia and Ryan Moreno were conducting a surveillance of a housing project for possible narcotics activity. The officers were in a field opposite the Nickerson Gardens housing projects. Using binoculars, they observed activity outside unit 844 at 1501 East 114th Street. At approximately 2:45 p.m., they saw appellant and two other men standing on the porch outside the unit. Appellant walked into the unit and emerged holding a black plastic bag in his left hand. He walked to a station wagon parked at the curb and put the black plastic bag on the front seat through the open passenger window.

Appellant returned to the porch and began talking with the other men. A woman approached and handed appellant something that appeared to be money. Appellant walked to the car, retrieved something from the bag, then returned to the woman and handed her the item. She walked away. Five to ten minutes later, appellant repeated the same transaction with a man. The officers watched the other men on the porch each make a similar exchange. After viewing what they believed to be four narcotics transactions, the officers requested additional units for assistance for a narcotics investigation stop. Officers arrived and arrested appellant and the two other men. Appellant had $72 on his person, but was not carrying any marijuana.

Officers Garcia and Moreno entered the unit, which appeared to be vacant. An open shoe-box lay on a stool. The box contained 82 plastic baggies of what was later identified as marijuana. Inside the kitchen cabinets the officers recovered scales, more plastic baggies with marijuana and packaging materials. They did not find narcotics paraphernalia that would indicate personal use, such as pipes, bongs or rolling papers. The bag recovered from the car contained eight baggies of marijuana. Appellant did not live in the unit or own the car. It was established at trial that other suspects could have fled through the back door of unit 844, because the officers were unaware the unit had another exterior door until they entered the residence.

Officer Moreno testified that a large quantify of marijuana packaged in separate baggies can indicate that it is possessed for the purpose of sale. The Bounty Hunter Blood gang sells drugs in Nickerson Gardens. They commonly take over a unit belonging to a family and store their drugs or weapons in the apartment. The families move out, but their names remain on the lease. The gang begins selling narcotics from the unit, without the housing authority realizing the tenant has left. The units are changed frequently, to eliminate any trail of drug activity.

Appellant proceeded to trial in pro. per. Before the People rested, he sought to introduce into evidence a piece of mail that had been sent to unit 844. The mail appeared to be a demand for payment of a magazine subscription. The court examined the document and stated that it was a pre-printed form addressed to someone by the name of "Jhon," but did not include a last name. The document was addressed to unit 844 and the court indicated that the mail was from "Reptiles," which appeared to be a magazine. The return address was a post office box in Boulder Colorado. The court noted that printed at the top was "'Second request. Please respond today. Subscription term, 12 issues. Amount due, 19.97,' and [there is] a reply date of May 27th, [2005]."

The court elicited from appellant that he wished to offer the mail to contradict the officers' testimony that the unit was vacant. Because appellant was proceeding in pro. per., the trial court explained the evidentiary requirements for the introduction of evidence. The following exchange occurred:

"[The court]: Now, you're seeking, Mr. Phillips, to introduce this document to show what?

"[Appellant]: To show that the house was, indeed, vacancy [sic]. That document, along with another [piece of mail], would show that someone was actually living in that house on March 22nd. . . ."

"[The court]: [Y]ou need to establish a foundation for this. . . . [It] isn't going to establish by proof that someone lived there. All it would show is that a piece of mail was delivered to that location. . . . [¶] . . . [M]y tentative is to deny the introduction of that evidence."

Appellant next inquired whether a document from the Housing Authority indicating that someone was living in unit 844 during March would be relevant. The court responded: "That's a different kind of document, and I think that has different weight. [¶] . . . But, once again you're going to have to establish the foundation for that document."

After a further exchange the court stated, "I think I understand the gist now of what you're trying to establish . . . that you were wrongly accused of a crime because you were not the occupant of that unit." Appellant acknowledged that this was correct. The court repeated that the mail was irrelevant to prove that someone was physically present in unit 844, stating, ". . . I would not allow you to introduce . . . documents . . . that simply show that pieces of correspondence or mail were delivered to that location."

DISCUSSION

Appellant argues that the trial court's exclusion of the magazine subscription violated his due process right to present a defense and was reversible error of constitutional dimension. He argues that he established at trial that he was not arrested inside unit 844; did not live there; did not own the car in which the marijuana was found; and that other suspects could have fled through the back door. Appellant reasons that he should have been allowed to present evidence that someone else lived in the residence, thus someone else could have possessed the marijuana found in the unit and car. He also claims he was deprived of the opportunity of impeaching officers' testimony that the unit was vacant.

Only relevant evidence is admissible. (Evid. Code, § 350.) Relevant evidence is evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) The court has broad discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate an undue consumption of time, or confuse the issues or mislead the jury. (Evid. Code, § 352; People v. Lewis (2001) 25 Cal.4th 610, 637.)

As the trial court pointed out, admitting the mail would only have shown that it had been delivered to unit 844. Absent an offer of proof, the evidence was irrelevant to refute the charges against appellant and was properly excluded. Because there was no evidentiary error, we need not address appellant's claim of prejudice.

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

PERREN, J.

Paul A. Bacigalupo, Judge

Superior Court County of Los Angeles

______________________________

Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc E. Turchin, Supervising Deputy Attorney General, Michael C. Keller, Deputy Attorney General, for Plaintiff and Respondent.

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Analysis and review provided by Vista Real Estate Attorney.

^[1] All further statutory references are to the Penal Code unless otherwise stated