P. v. Wheeler

Filed 9/26/07 P. v. Wheeler CA2/31

Opinion following remand by U.S. Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Maureen Duffy-Lewis and Michael M. Johnson, Judges. Reversed and remanded with directions.

Judith Vitek, 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, Assistant Attorney General, Herbert S. Tetef and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Christopher Wheeler appeals from the judgment entered following his convictions by jury of possession of cocaine (Health & Saf. Code, 11350, subd. (a)) and count 2 - possession of marijuana for sale (Health & Saf. Code,  11359).[1] The court sentenced him to prison for three years. Appellant claims the trial court committed trial and sentencing errors. We reverse the judgment and remand the matter with directions.

FACTUAL SUMMARY

1. Peoples Evidence.

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that about 5:50 p.m. on September 12, 2003, Los Angeles Police Detective Robert DOrazio received anonymous information that a male was selling narcotics at 1339 West 61st Street in Los Angeles. DOrazio gave the information to Los Angeles Police Officers Garrett Fitzgerald and Michael Fletcher.

About 6:00 p.m., Fitzgerald and Fletcher conducted undercover surveillance of the location. A blue pickup truck was parked in front of the house at the location. The truck had trash in its passenger compartment and open bed, and the truck appeared as though it had not been moved for some time. Appellant was in front of the house. Sometimes he stood with other males on the front porch of the house; other times he walked into the front yard.

From about 6:00 p.m. to 7:10 p.m., seven persons individually approached appellant and exchanged objects with him. On each occasion, the person handed appellant a small object and waited on the porch while appellant went to the trucks open bed. Appellant picked up a can with a yellow top that was in the truck bed. Appellant then returned to the person and gave the person an object, and the person left. During the incidents that occurred within the first 30 minutes, appellant looked up and down the street after he returned the can to the truck bed.

The sixth of the seven persons was Tyrone Gary. About 6:35 p.m., he parked a van near the house, then exchanged objects with appellant. Gary put his hand in his left pocket, then drove away in the van. Fitzgerald, believing Gary had bought narcotics from appellant, gave the information to Los Angeles Police Officers Robert Beckers and Norm Mikkelson, who were assisting Fitzgerald and Fletcher. Beckers and Mikkelson contacted Gary, searched him, and recovered from his left pants pocket a small plastic baggy containing 2.25 grams net weight of a substance containing marijuana. Beckers issued Gary a citation for possession of less than an ounce of marijuana. The citation was admitted in evidence.

The last of the seven persons was Curtis Patton. As Patton and a woman walked away, Patton put a small object in his right front pants pocket. Fitzgerald, believing Patton had bought narcotics from appellant, advised Beckers and Mikkelson accordingly. Beckers and Mikkelson stopped Patton, and Beckers recovered from Pattons right pants pocket two small plastic baggies containing 5.58 grams net weight of a substance containing marijuana. Beckers issued Patton a citation for possession of less than an ounce of marijuana. The citation was admitted in evidence. The items recovered from Gary and Patton looked substantially similar.

Fitzgerald told his supervisor that appellant was selling narcotics at the location and possibly storing them in the can or truck bed. During the period in which Fitzgerald and Fletcher observed appellant prior to his arrest, no one but appellant went into the truck bed. Police detained appellant and searched the truck. Fletcher recovered a fake aerosol can from the passenger side of the truck bed. The can had a yellow lid, a removable bottom, and an inner compartment. Such cans were typically sold to permit people to conceal personal effects. Police discovered inside the can 15 plastic baggies containing 40.5 grams net weight of a substance containing marijuana, and 2 plastic baggies containing .5 grams net weight of a substance containing cocaine base. The 15 plastic baggies were the same size as the baggies recovered from Gary and Patton. Police recovered $490 from appellant, consisting of one $100 bill, eighteen $20 bills, two $10 bills, and two $5 bills. DOrazio assisted in a search of the truck and found a bottle containing liquid phencyclidine (PCP).

2. Defense Evidence.

In defense, Gary admitted possession of the marijuana recovered from him on September 12, 2003, denied obtaining it from appellant, and claimed he bought it from someone else. Gary was acquainted with appellant and, on the above date, stopped by his house to talk to a friend of appellant. Appellant and a person named Tyrone were drinking beer and gambling.

Patton, who had suffered a 1985 conviction for first degree burglary, a 1988 conviction for attempted burglary, a 1991 conviction for receiving stolen property, a 1992 conviction for felony burglary, 1994 and 1996 convictions for burglary, and a 1999 conviction for receiving stolen property, admitted possession of the marijuana recovered from him on September 12, 2003, but denied he bought it from appellant. Patton knew appellant, and Pattons former girlfriend worked for appellants mother. On September 12, 2003, Patton stopped by appellants house to say hello. Patton denied seeing appellant go to the truck and manipulate a spray can with a yellow top.

Lamarr Brown, appellants brother, testified he lived with appellant, their mother, and another brother at the house. On a previous occasion, police searched the house and arrested Brown, and he was convicted of selling marijuana in May 2003. Brown was on felony probation at the time he testified. According to Brown, the truck, but not the can or its contents, belonged to him and he did not handle the can during the 20 minutes he was on the porch. On September 12, 2003, Brown was on the porch perhaps 20 to 30 minutes before the police came and arrested appellant. During that period, Brown did not see appellant exchange items, and did not see appellant go to the truck and manipulate a spray can with a yellow top. Nor did Brown go to the truck or see anyone else do so. Brown denied that Gary came to the porch on September 12, 2003, or that Patton came to the house that day.

Erik Evans, who had suffered a 1998 conviction for selling cocaine, testified he was appellants friend and had known him about 14 years. On September 12, 2003, Evans was at appellants house for about three hours before police arrested appellant. According to Evans, appellant was gambling and drinking beer. At some point Evans came out to the porch and was with appellant, Brown, and some other people. All of them were throwing empty beer cans into the back of the truck. Evans did not see appellant go to the truck and manipulate a spray can with a yellow top. Evans did not see Gary come to the house.

Appellant, who had suffered a 1996 conviction in federal court for fraud and had served time in federal prison, denied possessing marijuana or cocaine for sale on September 12, 2003. According to appellant, on September 12, 2003, he was on the porch gambling and drinking beer. Brown, Evans, and persons named Tyrone and Reesey were there. They threw the empty beer cans in Browns truck. Patton came by, but appellant denied selling marijuana to him or Gary. Appellant denied going to the truck and manipulating a can with a yellow top and denied knowledge of the can. Appellant gave officers consent to search his room, garage, and a burgundy car in the driveway. Appellant was employed but did not have a bank account, so he kept his money in his pocket.

CONTENTIONS

Appellant contends (1) the trial court erroneously denied his second Pitchessmotion, (2) the trial court erred by coercing the jury to reach a verdict, (3) the trial court abused its discretion by imposing upper terms, and (4) appellant had a constitutional right to a jury trial and proof beyond a reasonable doubt with respect to the facts relied on by the trial court to impose the upper terms.

DISCUSSION

1. The Trial Court Partially Erred by Denying Appellants Second Pitchess Motion, and Remand Is Appropriate.

a. Pertinent Facts.

On February 6, 2004, appellant filed his second pretrial discovery motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (hereafter, Pitchess motion). The motion sought from the Los Angeles Police Department, inter alia, the names, addresses, and telephone numbers of all persons who filed complaints against Fitzgerald, Fletcher, Beckers, Mikkelson, DOrazio, and Los Angeles Police Detective Gilbert relating to acts of dishonesty, fabrication of evidence or testimony, filing of false reports, or destruction of evidence. The motion also sought the names, addresses, and telephone numbers of all persons interviewed in connection with the above matters and sought related reports and information.

The supporting declaration of appellants trial counsel, Tamar Toister, stated on information and belief that, inter alia, the requested materials were in the exclusive possession of the investigating department, and that the information was material and relevant to trial and was necessary for the defense preparation for trial for the following reasons.

The declaration indicated that the police version of the arrest was attached. The police report reflects that about 5:50 p.m. on September 12, 2003, an anonymous citizen told DOrazio that a Black male named Chris was selling narcotics from the front porch of 1339 West 61st Street, and Chris kept a supply of narcotics in a fake spray can with a yellow top located in the bed of the truck parked in front of the location. The declaration also presented the police version of the facts, including the alleged sales of narcotics by appellant to seven persons including Gary and Patton. The declaration indicated that Fitzgerald and Fletcher made the observations, and Beckers and Mikkelson arrested Gary and Patton. The officers detained appellant who consented to a search of the garage, his room and the pickup truck. Officers found in the spray can with the yellow top two rocks of cocaine, several baggies of marijuana, and a small bottle of PCP.

Toisters declaration then stated the following on information and belief. The police version of the arrest was a complete fabrication. Appellant and several friends were on the front porch of appellants home shooting dice and drinking beers. They had been hanging out on the porch since about 5:00 p.m. After they finished drinking a beer, they would each walk to the pickup truck parked on the north side of 61st Street and put their empty cans in the truck bed. Two people stopped by the porch while appellant and his friends were there. Gary stopped by to tell appellant that Garys father was in the hospital. Patton stopped by to see what they were doing. Appellant did not sell anything or receive anything from either person.

Toister had spoken to Gary, one of the two men alleged to have bought narcotics from appellant. Gary told Toister that Gary did not buy anything from appellant. Gary had purchased on September 10, 2003, the marijuana that police found in his pocket on September 12, 2003. Gary told Beckers and Mikkelson that Gary had had the marijuana for two days, a fact they deliberately withheld from the defense. At no time did appellant pick up the yellow-topped can from the pickup truck and take anything out of it, and the claim of Fletcher and Fitzgerald that appellant did so was a fabrication.

Toisters declaration also stated that the police report was further misleading in that it did not state that when the officers arrived, they pulled everybody off the porch, lined them up, and handcuffed them. It was further misleading in that appellant signed a consent form giving Fletcher, Fitzgerald, DOrazio, and Gilbert permission to search only the garage and appellants room. After appellant signed the form, the officers and/or detectives added the reference to the Toyota pick-up truck to the form without appellants permission. Appellant did not know the name of the officer and/or detective who had appellant sign the form and who then altered it, but all four persons mentioned on the form were part of a conspiracy by concealing the circumstances under which it was signed.

The declaration then states as follows. The alleged consent form was not included in the original discovery in this case. Toister filed a Pitchess motion notice on December 15, 2003, and saw the consent form for the first time when it was attached to the written opposition of the City of Los Angeles dated January 15, 2004. The first chance Toister had to discuss the consent form with appellant was after the first Pitchess hearing on January 23, 2004, at which time appellant explained to Toister the circumstances surrounding the alleged consent.

Toisters declaration also stated as follows. The entire case depended on the credibility of the arresting officers. The defense expected to show that the arrest did not occur as the officers wrote in the arrest report and that they fabricated the arrest report. Evidence that a police officer has a history of falsifying police reports, planting or destroying evidence, making false arrests, fabricating probable cause, or giving false testimony or committing perjury would be relevant and admissible to establish the officers character for honesty and truthfulness. The declaration later stated that the defense would use the materials to locate witnesses to testify that the officers have character traits, habits, and customs for engaging in acts of dishonesty involving moral turpitude. These character traits of the officers were relevant to show the officers propensity to engage in such acts, and that the officers engaged in such conduct in this case.

The police report and supplemental reports were attached. The police report, prepared by Fitzgerald and Fletcher, reflects as follows. Appellants alias was Johann Clegg. Officers checked the vehicle registration of the truck and determined that the truck belonged to appellants mother. When Los Angeles Police Officers Hearn and Hartman contacted appellant, he told them that his name was Johann Clegg. After appellant waived his Miranda rights, appellant acknowledged to DOrazio that Johann Clegg was not appellants name, but his brothers name.

On February 11, 2004, Toister filed a supplemental declaration on information and belief which stated that Patton did not give appellant any money, and Patton did not purchase or otherwise obtain drugs from appellant about 7:10 p.m. on September 12, 2003, so the officers who claimed to have seen Patton do so were lying.

The officers who pulled up behind Patton to detain him pulled out their guns and displayed their badges. They told Patton to drop everything in his hands and put them up. The officers did not ask for and Patton did not give permission to the officers to search him. The officers told him they were looking for rock cocaine. They kept insisting that Patton made a buy from appellants house. Patton denied doing any such thing. The officers version of the arrest of Patton as recorded in the police report was a lie. Further, the officers failure to reveal to the defense Pattons favorable statement that he did not buy drugs from appellant was a deliberate concealment of evidence favorable to the defense.

A continuation sheet in the police report reflects Gilbert was a member of narcotics personnel. The sheet also reflects as follows. After Fitzgerald and Fletcher opined that appellant was selling narcotics, the two officers advised their supervisor, Detective Gilbert, of their observations and the above incidents. Gilbert formulated a plan to detain appellant in the front yard of 1339 West 61st Street with the assistance of two 77th Division patrol units, plus Beckers and Mikkelson. The report later states that about 7:35 p.m., the above officers detained appellant. A police property report attached to the motion reflects that Fletcher, Beckers, and DOrazio recovered all narcotics and property listed in the report. On February 24, 2004, the People filed a written opposition to appellants second Pitchess motion.

At the April 2, 2004 hearing on the second Pitchess motion, Los Angeles Deputy City Attorney Abraham Atteukenian represented the Los Angeles Police Department as real party in interest. Toister represented she thought she first received a copy of the consent to search form at the January 23, 2004 hearing on the first Pitchess motion. Toister explained that, after the first motion, appellant explained to her that he had signed the consent form but, after he signed it, police added the reference to the truck as an item they could search. The court suggested the issue was irrelevant because even if the officers lacked consent to search the truck they lawfully could have searched it as incident to appellants arrest. Toister conceded the police did not need consent to search the truck, but argued that the fact that they added the truck reference was relevant because appellant was alleging fraudulent behavior by the arresting officers.

Atteukenian suggested issues were being presented that were not relevant to officer misconduct, and consent to search was not an issue. Atteukenian argued that the alleged misconduct was that the officers added a reference to the Toyota pickup to the consent form. Atteukenian urged appellants allegation was difficult to accept because police went to the location because of a tip, they observed appellant going to the truck, and the can from which police recovered the drugs was in the truck.

As to Gary and Patton, Atteukenian suggested that the fact that they had drugs on them did not mean they did not also buy drugs from appellant. Atteukenian argued that information from Gary and Patton was hearsay, and inquired if they would be willing to sign a declaration under penalty of perjury that they possessed marijuana on September 12, 2003. Atteukenian noted that the police recovered $490 from appellant which was unusual if appellant merely had been sitting on the porch talking to friends. Atteukenian indicated that the officers recovered cocaine and methamphetamine from the truck, and they saw appellant engaged in narcotics transactions. The court observed there was a panoply of drugs.

The court discussed plea bargain issues but appellant denied he wanted to plea bargain. Atteukenian, returning to the issue of the credibility of the declaration supporting the second Pitchess motion, noted that appellant had falsely identified himself to police and signed the consent form as Johann Clegg even though he was now challenging the validity of that form. Atteukenian urged appellant lacked standing to challenge the form.

Atteukenian also responded as follows. Atteukenian had a hard time finding the declaration credible given the mountain of drugs, the information contained in the arrest report, the tip received by the officers, the container and drugs recovered, the drugs recovered from the other individuals, and the amount of currency found on appellant. Gary and Patton had not come forward before now. The court should deny the motion with prejudice.

The court denied the second Pitchess motion, stating there was no plausible scenario. Toister asked what the court meant by no plausible scenario, and the court replied it was adopting Atteukenians response verbatim. Additional facts will be presented below where pertinent to the analysis.

b. Analysis.

Appellant claims the trial court erroneously denied his second Pitchess motion. As mentioned, we partially agree. In Warrick v. Superior Court (2005) 35 Cal.4th 1011 (Warrick), the defendant in a narcotics case made a Pitchess motion, seeking disclosure of citizen complaints against arresting officers for making false arrests, falsifying police reports, or planting evidence. The defendant also sought extensive discovery concerning other alleged misconduct by the officers. (Id. at p. 1017.) The appellate court, upholding the trial courts denial of the motion, concluded the defendants showing of good cause was insufficient because he failed to articulate a plausible factual foundation for his officer misconduct claim. (Id. at p. 1018.)

Warrick, holding the appellate court reversibly erred (Warrick, supra, 35 Cal.4th at pp. 1018, 1023-1026, 1028), stated, We conclude that a plausible scenario of officer misconduct is one that might or could have occurred. Such a scenario is plausible because it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges. A defendant must also show how the information sought could lead to or be evidence potentially admissible at trial. . . . Once that burden is met, the defendant has shown materiality under section 1043. (Id. at p. 1026, italics added.)

As mentioned, appellants version of what occurred is set forth in Toisters declaration. Appellant, through Toister, effectively denies possession, or sale, of narcotics. Moreover, like the defendant in Warrick, appellant claims the police falsely accused him and here appellant claims the police falsely accused him of possessing and selling narcotics.

Further, appellant did more than merely make the above mentioned denials. He set forth a detailed, and allegedly factual, account of events that affirmatively occurred. That is, appellant indicated that during the period in which according to police appellant was selling narcotics he was in fact gambling and drinking beer with several friends on the porch of his house. Appellant and his friends would walk to the truck and put their empty beer cans in the truck bed. Appellant never picked up the can with the yellow top from the truck or took anything out of it. Gary told Toister that he had not bought anything from appellant. Gary also told Toister that he had possessed for two days the drugs police found on him, a fact which Gary told to Beckers and Mikkelson. Patton dropped by but appellant did not sell anything to or receive anything from anyone. Patton told Toister that he did not purchase drugs from appellant, a fact Patton also told police.

Moreover, appellant argued as follows. The police report was misleading because appellant signed a consent to search form giving Fitzgerald, Fletcher, Gilbert, and DOrazio permission to search only the garage and appellants room. The officers and/or detectives later added the reference to the truck without appellants permission. Appellant did not know the identity of the officer or detective who added the reference, but Fitzgerald, Fletcher, Gilbert, and DOrazio were conspiring to conceal the circumstances in which the form was signed. In short, appellant set forth a detailed scenario which if true established his complete innocence.

Appellants scenario was, over all, plausible because it was one that might or could have occurred (Warrick, supra, 35 Cal.4th at p. 1026), that is, it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges. (Ibid.) Appellants version of the facts generally supported his proposed defense that he did not commit the crime and the police were fabricating. Given those facts, the issues of whether appellants scenario inspired belief, whether the police report presented a version of events that might have occurred and/or that conflicted with appellants version, and whether the police version might have been more persuasive than appellants version were irrelevant under Warrick. (Id. at pp. 1024-1026.)

We conclude appellant made the requisite showing of a specific factual scenario that established a plausible factual foundation for alleged misconduct as to Fitzgerald, Fletcher, Beckers, Mikkelson, and DOrazio with respect to the making of false arrests, fabricating police reports or probable cause, and committing perjury. Accordingly, to that extent, we conclude the trial court erred by denying appellants second Pitchess motion based on the trial courts conclusion that appellant failed to make the good cause showing required by Evidence Code section 1045, subdivision (b). (Warrick, supra, 35 Cal.4th at pp. 1016-1028.)

However, we agree with respondent that the second Pitchess motion was overbroad to the extent it requested anything other than information relating to the categories of misconduct, and officers and detective, identified in the preceding paragraph. (See California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1021.) In particular, the motion is overbroad as to Gilbert because it is not clear from the second Pitchess motion or the police report that Gilbert had any role in the events of September 12, 2003, other than receiving hearsay from Fitzgerald and Fletcher, formulating a plan for the detention of appellant, and perhaps detaining him. The motion is also overbroad to the extent it sought information relating to the category of misconduct of planting evidence. The police version of events was that appellant possessed the narcotics in the truck bed, and Gary and Patton possessed narcotics that they purchased from appellant. The defense version was that Gary possessed narcotics, but neither he nor Patton obtained narcotics from appellant, and appellant did not possess narcotics in the truck bed. However, appellant did not contradict the police version that Gary and Patton possessed narcotics, and appellant failed to make a good cause showing that police planted anything on Gary or Patton, or in the truck bed.

This is not a case in which, for example, witnesses other than police testified they observed appellant selling, or possessing for sale, narcotics. There is no dispute the present case involved a credibility dispute between, on the one hand, the Peoples police witnesses and, on the other, appellant and the defense witnesses. It may be that the personnel files of Fitzgerald, Fletcher, Beckers, Mikkelson, and DOrazio contain no complaints, or no discoverable complaints, of misconduct. But we cannot simply assume there are no discoverable complaints. And without knowing the number, nature, or relevance of any such complaint(s), we cannot, on this record, and in a case involving a credibility contest, conclude as a matter of law that the trial courts summary denial of appellants second Pitchess motion was not prejudicial.

We will reverse the judgment and remand the matter with appropriate directions. (People v. Johnson (2004) 118 Cal.App.4th 292, 304-305; People v. Hustead (1999) 74 Cal.App.4th 410, 418-423.) We express no opinion as to whether any police committed misconduct in this case.

2. The Trial Court Did Not Coerce the Jury to Reach a Verdict.

a. Pertinent Facts.

The jury initially deliberated between about 3:15 and 4:00 p.m. on May 6, 2004. About 9:00 a.m. on May 7, 2004, deliberations resumed and they continued until 10:18 a.m. The jury went on a break between 10:18 a.m. and 10:33 a.m., then resumed deliberations until about 11:30 a.m., when the jury indicated by note that they were deadlocked.

At 11:55 a.m., the court, parties, and jury were in the courtroom and the court recited the jurys note. The court asked the foreperson whether, in the forepersons judgment, there would be any prospect of a change if the jury continued deliberations. The foreperson indicated that, in his opinion, there would not be.

The court then asked whether, in the forepersons opinion, there was anything the court could do to assist the jury such as permitting a readback of testimony or clarifying instructions. The foreperson replied that all of those options had been explored, and the foreperson did not think there was anything further that would assist. Three other jurors indicated the same, and one suggested a fourth had been uncooperative.

After further inquiry, the court determined the following. The jury had voted twice, once earlier that morning, and once about 11:30 a.m. The most recent vote had an 8-4 split on one count and a 9-3 split on the other. There had been a change of two votes from the first to the second vote.

At sidebar, the court stated, I think its premature. If they were static all day today, even though its somewhat earlier, I might have a different view. But if there was a two-vote change half an hour ago, and theyve only been deliberating less than a day, I think its premature. The prosecutor agreed and indicated he had discussed the matter with his supervisor. The prosecutor represented that his supervisor opined that three hours was an insufficient period for a jury to deliberate in a drug case, and the jury should be made to deliberate at least a day despite the two-vote change. The court asked if there were anything else, and Toister stated, They kind of indicate theres nothing we can do to help them. They are stuck. I am worried about the course and effect of this if we make them go back. The court indicated it would direct the jury to continue deliberating. Appellant did not then expressly object.

The court later requested the jury to continue deliberations. The court noted deliberations had begun only the previous afternoon, and the jurys votes were changing at least as of the morning of the day of the courts request. The court repeatedly indicated it was not trying to pressure anyone. The court told the jury to let the court know if the jury needed help, and the case deserved more discussion among jurors before the court declared them hopelessly deadlocked. The jury then took a lunch break from 12:05 p.m. to 1:30 p.m.

The jury subsequently resumed deliberations until 2:10 p.m., when they indicated they wanted a readback of the testimony of Fitzgerald and Fletcher concerning the issue of what each officer saw exchanged between appellant and others. The readback commenced at 2:54 p.m. and concluded at 3:05 p.m. The jury subsequently resumed deliberations until 3:45 p.m., when they signaled they had reached verdicts.

b. Analysis.

Penal Code section 1140, states in relevant part, Except as provided by law, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, . . . unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree. (Italics added.)

The determination of whether there is a reasonable probability of jury agreement rests in the sound discretion of the trial court. Moreover, the court may direct further deliberations upon its reasonable conclusion that such direction would be perceived as a means of enabling jurors to enhance their understanding of the case. (Cf. People v. Proctor (1992)4 Cal.4th 499, 539.) Further, a defendants right to due process is violated if a trial court coerces jurors into reaching a verdict. (Jiminez v. Myers (9th Cir. 1993) 40 F.3d 976, 978-980.)

Although we might have concluded that appellant, by failing to object below that the trial court either abused its discretion under Penal Code section 1140 or violated due process by coercing jurors to reach a verdict, waived those issues (see People v. Benson (1990) 52 Cal.3d 754, 786-787, fn. 7; People v. Anderson (1990) 52 Cal.3d 453, 469; People v. Rogers (1978) 21 Cal.3d 542, 548), there is no need to decide whether those issues were waived.

Appellant concedes the trial court did not expressly coerce the jury. Moreover, we have recited the pertinent facts. They reveal the trial court deferentially inquired if further deliberations would be helpful. The court inquired into the numerical split of the jury without asking whether the vote was for conviction or acquittal, considered that votes had changed between the first and second votes, considered that the period of jury deliberations had been too brief, and determined it was premature to discharge the jury.

Moreover, the court told the jury that, inter alia, they only began deliberating the day before, and the court was not trying to pressure anyone. The court also indicated the case deserved more discussion, the court was willing to help any way it could, and repeated it was not trying to pressure anyone one way or the other. The court never stated that the jury had to reach verdicts.

Under such circumstances, the trial judge could reasonably conclude that his direction of further deliberations would be perceived as a means of enabling the jurors to enhance their understanding of the case rather than as mere pressure to reach a verdict on the basis of matters already discussed and considered. [Citation.] (People v.Rodriguez (1986) 42 Cal.3d 730, 775 (Rodriguez).) Further, later events bore out that conclusion since, after the court instructed the jury to continue deliberations, the jury requested and was read portions of testimony not previously read during deliberations. Therefore, the deliberations remained properly focused on the evidence [citation]. (Id. at pp. 775-776.)

Appellant cites Rodriguez for the proposition that Where the trial is relatively short and the issues are relatively simple, further deliberations seem unnecessary to enable the jury to understand the evidence and could only be deemed intended to coerce the minority into joining the majority jurors views of the case. (Rodriguez, [supra,] 42 Cal.3d [at p.] 775.) However, the sole cases relied on by Rodriguez were People v. Crossland (1960) 182 Cal.App.2d 117, and People v. Crowley (1950) 101 Cal.App.2d 71.

In Crossland, unlike the present case, the trial court stated the case before it was simple. The jury reasonably could have understood the statement to mean that the evidence was simple and, therefore, that the views of two jurors in the minority were wrong. (Crossland, supra, 182 Cal.App.2d at p. 119.) In Crowley, unlike the present case, the trial court indicated to the jury that the evidence was plain and clear although conflicting, the evidence should be analyzed to the extent of being able to reach a decision in the case, and jurors should reach a verdict if it is at all possible. (Crowley, supra, 101 Cal.App.2d at p. 76, italics added.) Unlike Crossland and Crowley, Rodriguezaffirmed the judgment (Rodriguez, supra, 42 Cal.3d at p. 775), concluding that the case in Rodriguez was long and complex. (Ibid.) The jurys request in the present case for a readback indicates they did not view this case as simple.

The burden is on appellant to demonstrate error; it will not be presumed. (In re Kathy P. (1979) 25 Cal.3d 91, 102; People v. Garcia (1987) 195 Cal.App.3d 191, 198.) Appellant has failed to demonstrate that the trial court abused the discretion granted to the court under Penal Code section 1140, or that appellants right to due process was violated. None of the cases cited by appellant compels a contrary conclusion.

3. The Court Did Not Err by Imposing Upper Terms for the Present Offenses.

a. Pertinent Facts.

The preconviction probation report prepared for a November 2003 hearing reflects appellant has at least one alias and a moniker, and reflects as follows concerning appellants criminal history. As a juvenile, in February 1989, appellant suffered a sustained petition for burglary and the court placed him home on probation for three years.

As an adult, in January 1993, appellant suffered a conviction for possessing cocaine and the court placed him on probation for three years. In February 1993, appellant suffered a conviction for driving with a suspended drivers license and the court placed him on summary probation for two years. Also in February 1993, appellant suffered a conviction for failing to appear in court and the court placed him on summary probation for two years. The report does not expressly state he was convicted on that charge, but there is no dispute that he was.

In November 1994, appellant suffered a drunk driving conviction and the court placed him on probation for three years. In December 1994, appellant suffered another such conviction and the court placed him on summary probation for three years. In January 1996, appellant pled guilty to fraud in federal court. In that matter, the court released appellant on supervision. We note that on the portion of the probation report discussing the federal conviction someone wrote, inter alia, that the offense at issue was a violation of Title 18 United States Code section 922(a)(6). That section proscribes providing false information when acquiring a firearm or ammunition.

The report listed as aggravating factors that the planning, sophistication or professionalism with which the crime was carried out, or other facts, indicated premeditation, and appellants prior convictions as an adult or adjudications of commission of crimes as a juvenile were numerous or of increasing seriousness. The report indicated there were no mitigating factors. The probation officer stated the aggravating factors slightly outweighed the mitigating factors, and recommended that the court sentence appellant to prison for the mid-base term. Attached to the report were character letters from appellants pastor, mother, friend, and a neighbor.

At sentencing, the People requested that, if the court sentenced appellant to prison, appellant be imprisoned for 16 months. Appellant urged as follows. Appellants federal conviction was based on his applying for a firearm under a false name. He had been to federal, but not state, prison. Appellants pastor, neighbor, and friends were in the courtroom. Appellants mother was not present but wanted the court to know appellant lived with her and she relied on appellant to help with her business and a disabled son. Appellant would comply with any terms of probation.

The court said it had reviewed the probation report and appellants character letters. The court found appellant was unsuitable for probation. The court indicated the following were aggravating factors. Appellants criminal record was increasing; he had a 1993 cocaine possession conviction for which he was placed on probation, but suffered a 1996 federal fraud conviction for which he was sent to federal prison. Appellant was doing a brisk narcotics business when arrested. He had a whole selection of drugs in the truck bed including PCP, although he was not charged with possession or sale of PCP.

Moreover, Brown, appellants brother, was convicted of selling marijuana at the same location where appellant was selling narcotics in the present case, and the fact that appellant sold after his brothers conviction demonstrated appellants utter disrespect for the law. The court was not going to impose, but could have imposed, consecutive terms on the present counts. Appellant sold narcotics even though he had a lawful occupation, therefore, he was not merely a street person selling drugs to obtain necessities, but was trying to make extra money. We note appellant interrupted the court to continue to deny that he sold narcotics, but did not then otherwise challenge the courts recitation of aggravating factors.

The court indicated that the fact that there was only a small amount of cocaine was a mitigating factor. However, the court also indicated it imputed little significance to that factor in light of appellants brisk narcotics business and the variety of narcotics he possessed. The court sentenced appellant to prison for the three-year upper term for possession of marijuana for sale (count 2) with a concurrent three-year upper term for possession of cocaine as a lesser offense of possession of cocaine base for sale (count 1). The court stated sentencing was completed and the court would attach the character letters to the probation report. Appellant thanked the court, raised no further sentencing issues, and posed no objections.

b. Analysis.

Appellant claims imposition of upper terms for the present offenses was error. The claim is unavailing since, despite opportunities to do so, appellant never objected when the trial court either relied on various aggravating factors to impose the upper terms or rejected any mitigating factor. (Cf. People v. Gonzalez (2003) 31 Cal.4th 745, 748, 751-752; People v. Scott (1994) 9 Cal.4th 331, 348, 353-356.)

Moreover, as to the merits, the record demonstrates that the trial court read and considered the probation report and appellants character letters. The court heard argument of counsel and knew that appellant had supportive people in the courtroom. Further, there was substantial evidence supporting, and the court properly relied upon, the aggravating factors. First, appellants prior convictions were increasingly serious and were numerous. (People v. Searle (1989) 213 Cal.App.3d 1091, 1098; Cal. Rules of Court, rule 4.421(b)(2).) Notwithstanding appellants suggestion to the contrary, the prior convictions were not old.

Second, appellant was convicted of possessing marijuana for sale, and possessing cocaine, and appellant makes no sufficiency challenge to those convictions. That fact, plus the sequence and similarity of the activities of appellant and the seven persons (including Gary and Patton) with whom appellant exchanged objects, and the fact that police found Gary and Patton in possession of marijuana, provided sufficient evidence for the sentencing court to conclude appellant was engaging in the brisk selling of narcotics located in the truck bed. (Cal. Rules of Court, rule 4.408(a).)

Third, the above facts provided sufficient evidence that appellant possessed not just marijuana, but cocaine and PCP in the truck bed. The court acknowledged appellant had not been charged with the possession or sale of PCP, but the court was entitled to consider the substantial evidence that he possessed it. (Cal. Rules of Court, rule 4.408(a).) No error or impermissible dual use of facts occurred by reason of the courts consideration of the three different kinds of narcotics, since the present offenses were based on only two kinds of narcotics. The process of weighing aggravating factors and any mitigating factor involves a flexible quantitative and qualitative analysis, and not a rigid numerical approach. (People v. Thornton (1985) 167 Cal.App.3d 72, 77.)

Fourth, the court was also entitled to consider appellants disrespect for the law as evidenced by his engaging in narcotics activity despite the fact that his brother had been convicted of selling narcotics at that same location. (Cal. Rules of Court, rule 4.408(a).) Fifth, there is no dispute the court was entitled to consider as an aggravating factor that the court was going to impose concurrent terms for crimes for which it could have imposed consecutive terms. (Cal. Rules of Court, rule 4.421(a)(7).) Sixth, the court reasonably concluded that a person like appellant who was selling drugs to make extra money was more culpable than a person selling drugs to obtain necessities. (Cal. Rules of Court, rule 4.408(a).)

A single aggravating factor is sufficient to justify imposition of an upper term. (People v. Dreas (1984) 153 Cal.App.3d 623, 636.) The court is presumed to have considered all relevant sentencing criteria (Cal. Rules of Court, rule 4.409), and is not required to state its reasons for rejecting any mitigating factor. (People v. Reid (1982) 133 Cal.App.3d 354, 370-371.) The court did not abuse its discretion by imposing upper terms for the present offenses. Moreover, since the court did not err in its selection of aggravating factors and rejection of any mitigating factor, the failure of appellants trial counsel to object at the time did not constitute ineffective assistance of counsel. (Cf. People v. Ledesma (1987) 43 Cal.3d 171, 215.) None of the cases cited by appellant, or his argument, compel a contrary conclusion.

4. The Court Did Not Commit Cunningham Error by Imposing the Upper Terms.

Appellant contends he had a constitutional right to a jury trial and proof beyond a reasonable doubt as to the facts relied upon by the trial court to impose the upper terms. We disagree.

a. Applicable Law.

In Cunningham [v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] [Cunningham]], the United States Supreme Court, applying principles established in its earlier decisions in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 120 S.Ct. 2348] (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403, 124 S.Ct. 2531] (Blakely), concluded that Californias DSL does not comply with a defendants right to a jury trial. [U]nder the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. (Cunningham, supra, 549 U.S. at pp. ___ [127 S.Ct. at pp. 863-864].) (People v. Sandoval (2007) 41 Cal.4th 825, 836 (Sandoval).)

The Sandoval court later observed, Apprendi stated, Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490, italics added.) (Sandoval, supra, 41 Cal.4th p. 835.) In Blakely, the high court concluded that the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. (Id. at p. 303.) (Sandoval, supra, 41 Cal.4th p. 836.)

The United States Supreme Court has recognized two exceptions to a defendants Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. (Sandoval, supra, 41 Cal.4th at p. 836.) One such exception is: the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. [Citations.] (Id at pp. 836-837.)

[I]f one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not legally entitled to the middle term sentence, and the upper term sentence is the statutory maximum. (People v. Black (2007) 41 Cal.4th 799, 813 (Black).) [I]mposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (Black, supra, 41 Cal.4th at p. 816.)

Finally, in Black, our Supreme Court concluded, inter alia, that a trial courts imposition of an upper term did not violate the defendants Sixth Amendment right to a jury trial where the court concluded the defendants prior convictions were numerous or of increasing seriousness. (Black, supra, 41 Cal.4th pp. 818-820, fn. 7; Cal. Rules of Court, rule 4.421(b)(2).)[2]

b. Application of the Law to This Case.

As indicated, the court stated that one of the aggravating factors upon which the trial court relied to impose the upper terms on counts 1 and 2 was the defendants record is increasing. He had a relatively minor drug possession felony in 1993, was placed on probation, but engaged in fraud and was convicted of a federal offense and sent to federal prison in 1996. Imposition of the upper terms did not violate appellants Sixth Amendment right to a jury trial and proof beyond a reasonable doubt, since the record demonstrates appellant suffered prior convictions, and the trial court imposed the upper terms based in part on the facts that appellants prior convictions were increasing. (Cf. Black, supra, 41 Cal.4th at pp. 813-816. 818-820, fn. 7; People v. Ramos (1980) 106 Cal.App.3d 591, 609-610; Cal. Rules of Court, rule 4.421(b)(2).)

DISPOSITION

The judgment is reversed and the matter is remanded with the following directions. Following remand, and consistent with the views expressed in this opinion, the trial court must conduct an in camera inspection for the requested information from the personnel records of Los Angeles Police Officers Garrett Fitzgerald, Michael Fletcher, Robert Beckers, and Norm Mikkelson, and Los Angeles Police Detective Robert DOrazio, for relevance. If the trial courts inspection on remand reveals no relevant information, the trial court must reinstate the judgment, which shall then stand affirmed. If the inspection reveals relevant information, the trial court must order disclosure, allow appellant an opportunity to demonstrate prejudice, and order a new trial if there is a reasonable probability the outcome would have been different had the

information originally been disclosed. If appellant fails to demonstrate prejudice, the trial court must reinstate the judgment, which shall then stand affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

KITCHING, J.

We concur:

KLEIN, P. J.

ALDRICH, J.

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[1] Appellant was convicted of possession of cocaine as a lesser offense of possession of cocaine base for sale (count 1).

[2] In Black, the Supreme Court concluded the defendants prior convictions were both numerous and of increasing seriousness. (Black, supra, 41 Cal.4th p. 818.)