P. v. Reed

Filed 4/11/07 P. v. Reed CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Damadri Reed was convicted, following a jury trial, of one count of possession of cocaine and one count of possession of cocaine base for sale. On appeal, he contends the trial court improperly admitted his statements showing his dominion and control over the room where the contraband was found because the statements were obtained in violation of his Miranda[1] rights. We shall affirm the judgment.

PROCEDURAL BACKGROUND

Appellant was charged by information with one count of possession of cocaine (Health & Saf. Code,  11350, subd. (a))[2] and one count of possession of cocaine base for sale ( 11351.5). The information further alleged that appellant had suffered eight prior felony convictions ( 11370, subd. (a), 11370.2, subd. (a).) The information also alleged that appellant had suffered a prior prison term within five years of a subsequent felony conviction (Pen. Code,  667.5).

Before trial, appellant admitted all the sentencing enhancement allegations. At the conclusion of a jury trial, the jury found appellant guilty of both counts.

On November 28, 2005, the trial court sentenced appellant to 13 years in state prison.

On December 9, 2005, appellant filed a notice of appeal.

FACTUAL BACKGROUND

San Francisco Police Officer Kevin Healey testified that from early to mid-February 2005 until March 16, 2005, he participated in a narcotics investigation focused on appellant. In mid-February, Healey followed appellants vehicle from San Francisco to a house on Morton Drive in Daly City. As a part of the investigation, Healey conducted periodic surveillance of the Morton Drive residence. Healey surveilled the residence on six separate occasions.

During these surveillances, Healey observed appellant leaving the house on four different days. Healey also saw Tina Walton, later determined to be the mother of appellants 16-month-old child, leave the residence once. Throughout the period of his investigation, excluding the date of the arrest, Healey did not see anyone other than Walton and appellant leave the building.

Healey noted that two different vehicles registered to appellant were always in front of the Morton Drive house. Healey also saw a different vehicle, which he had seen appellant previously drive, parked at the residence.

San Francisco Police Officer Ricardo Guerrero testified that he assisted Healey in the investigation of appellant and surveillance of the Morton Drive house. Guerrero surveilled the house approximately six to 10 times. Excluding the date of arrest, Guerrero observed appellant leave the residence on two separate occasions. Again excluding the date of arrest, Guerrero did not see any other male leave the house. Guerrero did observe Walton leave the residence once. He never observed a child leave the residence.

On March 16, 2005, Healey and Guerrero were conducting surveillance on the Morton Drive residence. At approximately 3:00 p.m., the officers observed appellant exit the residence. A young male, later identified as P.B., Waltons teenage son, accompanied appellant. The two entered a charcoal grey Toyota and drove away from the residence. Both Healey and Guerrero followed appellants vehicle.

Guerrero lost sight of appellants vehicle, but Healey followed appellant to a hotel parking lot. There, Healey watched appellant enter the lot, stop, but fail to park. After appellants vehicle stopped, a man ran up to the passenger-side window, leaned inside the car, but did not enter the vehicle. After 10 to 15 seconds, appellant drove away, leaving the man in the hotels parking lot.

Based on his experience with narcotics transactions, which included over 500 undercover purchases of base rock cocaine and witnessing hundreds of other narcotics transactions, Healey testified that the transaction he observed was consistent with a narcotics deal. Appellant was stopped and arrested. Guerrero participated in the booking search of appellant. Appellant had $210 in cash with him at the time of his arrest. Guerrero testified that cocaine is typically sold in one-quarter gram increments, with the street value of that amount ranging between $150 to $200.

After obtaining a search warrant, Healey, Guerrero, and other San Francisco police officers went to the Morton Drive residence to conduct a search of the home and any safes found therein. Upon arriving at the residence, the officers knocked on the front door, with no response. Healey, who had confiscated appellants keys at the time of his arrest, tried a couple of the keys in the front door but failed to open the door. Though there were other keys on the key ring, Healey testified that due to his fear that someone inside the residence was ready to destroy evidence, he decided not to try the other keys and broke into the residence.

While searching one of the two bedrooms (bedroom number one), the officers discovered a safe. Although the officers could lawfully break open the safe to search its contents, Healey called the police station and had the following conversation with appellant:

Q [District Attorney]: What did you first say to him?

A [Officer Healey]: I told him who I was. I said, How are you doing, Damadri? This is Officer Healey from the San Francisco Police Department. I said, Im at your house. [] And he responded back, In Concord? [] I said, No. Im at . . . Morton Drive in Daly City. [] And he responded ahh, with a gasp. [] . . . []

Q: What did you say or do after you heard Mr. Reed gasp?

A: I told him that I had legal cause to open the safe, and I could either force it open or he could give me the combination to the safe.

Q: What did he say?

A: He gave me the combination to the safe.

The combination given by appellant opened the safe, but nothing of significance was found inside. After the safe had been opened, Guerrero continued to search for evidence in bedroom number one. While searching a dresser, Guerrero discovered a bindle containing 0.27 grams of powder cocaine in the top left hand dresser drawer. The dresser also contained a large amount of mens clothing. Guerrero testified that the clothing could fit appellant but was too large to fit the teenage P.B. No womens clothing or smaller-sized clothing was found in the dresser.

In the top drawer of the nightstand beside the dresser, Guerrero found 42.8 grams of cocaine base. The nightstand drawer also contained two digital scales, a large number of plastic sandwich bags, and plastic wrap. At trial, the parties stipulated that whoever possessed the cocaine base had possessed it for sale.

Also within the same nightstand drawer, Guerrero found a sizeable amount of paperwork relating to appellant. Specifically, the officer found: (1) a smog-check receipt dated March 10, 2005 with appellants name from a garage near the Morton Drive house; (2) Department of Motor Vehicles (DMV) paperwork with appellants name for a Dodge Econo-van that was often seen parked at the Daly City residence; (3) several pages of income tax forms with appellants name on them; (4) a receipt from the San Francisco City Records Office bearing appellants name; (5) DMV paperwork in appellants name for a 1985 Chevy; (6) DMV paperwork in appellants name for a 1989 Chevy Capri that the police had often seen parked at the Daly City house; (7) a DMV renewal notice bearing appellants name; (8) a photocopy of appellants drivers license; and (9) a photocopy of appellants Social Security Administration card. None of the documents listed appellants address as Morton Drive. The documents listed either an address in Concord or an address in San Francisco. Police did not find paperwork relating to other persons in bedroom number one. The paperwork found in the room related solely to appellant.

San Francisco Police Officer Ted Mullins conducted the search of the other bedroom within the residence (bedroom number two). In bedroom number two, Mullins found an envelope bearing P.B.s name, schoolbooks, and relatively small clothing.

Rochell Reed, appellants mother, testified that appellant lived with her in Concord and that Walton, the mother of appellants baby, lived on Morton Drive. Reed testified that appellant sleeps at the home in Concord approximately four nights a week. She did not recall appellant ever staying or residing at the San Francisco address that appellant had listed as his address on some of the seized DMV paperwork. Reed also testified that P.B. owns very large clothing.

Rochell Reed admitted to two convictions for felony forgery, one occurring in 1986 and the other in 1989. She also admitted to having been convicted of felony receipt of stolen property in 1989.

DISCUSSION

Appellant contends the trial court prejudicially erred when it admitted appellants statements made during the March 16, 2005 phone conversation with Officer Healey because the statements were obtained in violation of Miranda.

A. Trial Court Background

On September 19, 2005, the prosecution filed a motion to admit testimony relating to the March 16, 2005 phone conversation between Healey and appellant. The first significant portion of the conversation involved the exchange during which Healey told appellant that he was in appellants home. Appellant stated, In Concord? Healey replied, No . . . Morton Drive, in Daly City. According to Healey, appellant, in response, emitted a gasp. The second significant portion of the conversation involved Healeys request for the combination to the safe found in bedroom number one. Healey told appellant that, although he did not want to damage the safe, unless appellant gave him the combination to the safe, Healey would exercise his legal right to break open the safe and search its contents. Appellant gave Healey the correct combination.

The prosecution wanted to admit the gasp and appellants statement giving the correct combination of the safe as circumstantial evidence showing appellants dominion and control over bedroom number one, the same room in which the cocaine was found. Defense counsel opposed the motion and argued that the statements should be excluded as products of a Miranda violation.

The parties stipulated that appellant was in custody and had not been read his Miranda rights prior to the phone conversation. Accordingly, the admissibility of appellants statements hinged on whether the statements were the product of a police interrogation.

The trial court held an evidentiary hearing on the prosecutions motion to admit the testimony and the Miranda issues involved therein. After hearing testimony from Healey and reviewing briefs from both parties, the trial court found that appellants statements were not the product of an interrogation because Healeys statement that he was in appellants home and Healeys subsequent request for the combination to the safe were not attempts to elicit an incriminating response. The trial court concluded a Miranda violation had not occurred, and appellants statements were admitted at trial.

B. Legal Analysis

Statements made by a suspect in custody and in response to police interrogation are inadmissible unless the suspect received Miranda warnings prior to the interrogation. (Miranda, supra, 384 U.S. 436.) Appellant argues that his statements to Healey during the March 16 phone conversation were the product of a pre-Miranda interrogation and, therefore, inadmissible.

Appellant cites Rhode Island v. Innis (1980) 446 U.S. 291, which clarified the definition of  interrogation,  explaining that interrogation refers to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. (Id. at p. 301, fns. omitted.) According to appellant, the trial court incorrectly focused on Healeys intent in speaking with appellant rather than on how a reasonable suspect would view Healeys statements and questions. Appellant argues that Healeys statements during the phone conversation were not those normally attendant to arrest and custody. Moreover, appellant argues that Healeys comments and questions would appear to the reasonable suspect, as they did to appellant, as inquiries into appellants residence and connection with the address on Morton Drive. Thus, according to appellant, Healey interrogated appellant and appellants statements were obtained in violation of Miranda.

We need not decide whether the trial court erred in admitting appellants statements to Officer Healey because we conclude that, in light of the strong evidence of appellants guilt, any such error was harmless beyond a reasonable doubt. (See People v. Neal (2003) 31 Cal.4th 63, 86.)

Conviction for illegal possession of a controlled substance and illegal possession for sale of a controlled substance requires that the prosecution prove appellant knew of the cocaines presence and exercised control and dominion over the cocaine. ( 11350, subd. (a), 11351.5.) Appellants residence at the location where the cocaine was found was not necessary to sustain his conviction so long as there was sufficient evidence, circumstantial or direct, demonstrating appellants knowledge that cocaine was on the premises and appellants control and dominion over the cocaine. For example, in People v. Kortopates (1968) 264 Cal.App.2d 176, 177-178, the court upheld convictions of defendants charged with illegal possession of heroin for sale even though the heroin was found in the cupboard of an apartment where defendants did not reside and that was not leased to either defendant. The court held that there was sufficient circumstantial evidence demonstrating defendants control and dominion over the cupboard. (Id. at pp. 180-181; accord, People v. Robarge (1957) 151 Cal.App.2d 660.)

Here, even excluding appellants statements to Healy, there was overwhelming evidence connecting appellant to the cocaine and showing his knowledge of and control and dominion over the substance. First, during the four- to six-week surveillance, appellant was seen repeatedly at the Morton Drive residence. Officers testified that several vehicles that were registered to appellant were always parked at the house. Second, cocaine was found in a dresser drawer filled only with a large amount of male clothing. Guerrero testified that the clothing would fit appellant but not P.B. Although testimony from appellants mother intimated that the clothing belonged to the juvenile P.B., the smaller sized male clothing in bedroom number two contradicted her testimony. Third, cocaine was also found in the nightstand dresser filled with paperwork bearing appellants name. No paperwork belonging to anyone else was found in the room containing the cocaine. Fourth, on the day of appellants arrest, officers saw appellant leave the residence and participate in what appeared to be a drug transaction. During the booking search, officers found that appellant possessed cash in an amount approximating the street value for the most commonly sold amount of cocaine. Fifth, even if testimony from appellants mother that appellant resided in Concord were true, she testified he slept there approximately four nights per week, leaving three nights unaccounted for. This would allow sufficient time for appellant to attend to the cocaine at the Morton Drive home.

In light of all the evidence connecting appellant to the cocaine in both the dresser and nightstand drawers, it is clear beyond a reasonable doubt that the jury would have concluded that appellant knew of the cocaines presence and that he exercised dominion and control over the illegal substance, even if the March 16 phone conversation had been excluded at trial. (See People v. Neal, supra, 31 Cal.4th at pp. 86-87.)

DISPOSITION

The judgment is affirmed.

_________________________

Kline, P.J.

We concur:

_________________________

Haerle, J.

_________________________

Richman, J.

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

[2] All further statutory references are to the Health and Safety Code unless otherwise indicated.