P. v. White

Filed 5/23/07 P. v. White CA2/3

Reposted to provide correct version from court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Los Angeles County, George Genesta, Judge. Affirmed in part and remanded in part with directions.

Jonathan B. Steiner and Ronnie Duberstein, California Appellate Project, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E.Winters, and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

INTRODUCTION

A jury convicted defendant and appellant Billy Roy White of one count of sale of a controlled substance. At Whites trial, the prosecutor introduced a photographic exhibit, Peoples exhibit 1, identified as the drugs White sold to an undercover police officer. Peoples exhibit 1 was not produced before trial, and it was, arguably, inconsistent with another photograph, defense exhibit A, which was produced before trial. After the People rested, Whites trial counsel asked to recall officers to ask them about defense exhibit A. The trial court denied the request. White now appeals, contending that the trial court abused its discretion and denied him his right to present a complete defense. He also contends that there is insufficient evidence of his prior prison terms. We remand the case for a retrial on the prison priors. We otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual background.

On June 28, 2005, Officer Richard Aguiar was working undercover. Laverne Ingram^[1]approached him and asked, Do you want to buy some C.K.[?] rock cocaine. Officer Aguiar said yes. Ingram led him to White. Officer Aguiar gave a $20 bill to Ingram, who handed it to White. White removed off-white rocks from a white piece of grocery bag he was holding in his right hand. The rocks were in a sandwich bag material. White then took two rocks from an off-white colored substance that looked like rock cocaine and handed the rocks to Ingram, who gave them to Officer Aguiar. Either Ingram or White told Officer Aguiar, Heres the two rocks. Its the best shit around. Youll be begging for a third. You might as well buy a third rock now. Officer Aguiar left. He signaled to nearby officers to arrest Ingram and White.

II. Procedural background.

Trial was by jury. The jury found White guilty of count 1 for sale/transportation/offer to sell a controlled substance, cocaine base (Health & Saf. Code, 11352, subd. (a)). The trial court, on October 6, 2005, sentenced White to four years plus two one-year terms under Penal Code^[2]section 667.5, subdivision (b).

DISCUSSION

I. Any error in refusing to allow White to recall police officers to testify about defense exhibit A was harmless.

A. Additional facts.

Before trial began, the prosecution disclosed defense exhibit A. Defense exhibit A depicts two items wrapped in plastic. During his direct examination of the first witness, Officer Aguiar, the prosecutor did not show him defense exhibit A. Instead, the prosecutor showed Officer Aguiar Peoples exhibit 1, a photograph of two large, off-white rocks separated from a plastic bag or wrap. Peoples exhibit 1 had not been previously disclosed to the defense.^[3]Officer Aguiar identified Peoples exhibit 1 as a photograph of the rocks Ingram and White gave him, and which he later turned over to Officer Elias Linn. Whites trial counsel did not cross-examine Officer Aguiar regarding defense exhibit A or Peoples exhibit 1.

Officer Robert Devee next testified that he watched the entire transaction from a distance. Whites trial counsel did not cross-examine Officer Devee about defense exhibit A or Peoples exhibit 1.

Officer Linn then testified that Peoples exhibit 1 showed the items that Officer Aguiar gave to him. Officer Linn also said that the items were wrapped inside plastic when Officer Aguiar handed them over, but that they were later separated. Officer Linn took the items and tested them with a narcotics testing kit, called a Wells test kit. The rocks tested positive for cocaine base. Officer Linn booked the items under file number 05104188. Whites trial counsel did not cross-examine Officer Linn about defense exhibit A or Peoples exhibit 1.

Thomas McCleary, a senior criminalist, analyzed the items submitted to him under file number 05104188. They tested positive for cocaine base. On cross-examination, Whites trial counsel showed McCleary defense exhibit A. McCleary said it was difficult for him to tell what the photograph depicted. He was unaware of any other drugs collected in connection with this case which might have been booked or tested. He was not able to tell from defense exhibit A whether he had tested the items depicted. Officer Jerry Wright, who arrested White, also did not recognize defense exhibit A and did not know how it was generated.

The People rested, and the defense said it had no witnesses.

Whites trial counsel then moved to admit defense exhibit A. The People objected on the ground it lacked foundation. Whites counsel argued that defense exhibit A had handwritten on it 05-104188the file number assigned to the drugs White sold to the officerand that the number provided an adequate foundation. He added that defense exhibit A was the only photograph he had received before trial, and he therefore anticipated that the prosecution would use it. Instead, the prosecution used Peoples exhibit 1, which was disclosed during trial.

The trial court said it could allow the defense to recall officers, but Whites trial counsel responded that the problem was he had no idea who took the photograph. He therefore asked to recall all six officers involved in Whites arrest. The trial court then said that it would not allow the officers to be recalled because trial counsel had the opportunity to ask them about defense exhibit A. Defense counsel replied that he would not have known to ask them about defense exhibit A until after the chemist, McCleary, couldnt identify the photograph. It was only when McCleary couldnt identify defense exhibit A that trial counsel realized it was inconsistent with Peoples exhibit 1. He did not immediately recognize the significance of defense exhibit A, when compared to Peoples exhibit 1. Defense counsel argued to the trial court, . . . I did not think to myself, oh, thats inconsistent with the picture. I mean, I cant immediately recognize the significance of it. I just didnt. [] . . . [] I mean thats why discovery comes 30 days before trial, not in the middle of picking a jury or when the first witness is called. Im just not that brilliant. [] The problem I have is Im sitting here with a piece of discovery received from the prosecution, from the police through the prosecution. And its the only photograph up until this trial starts. [] Now I get an inconsistent photograph and an objection from the D.A. as to foundation when had he served this timely, I could have lined up my witness. I could have laid the foundation. I could have found out which officer took the report had it been served timely, but it wasnt.

The trial court sustained the Peoples objection to defense exhibit A, and it was not admitted into evidence.

B. Any error in refusing Whites request to recall officers was harmless.

By refusing his defense counsels request to recall officers, White contends that the trial court abused its discretion (see, e.g., Evid. Code, 774, 778) and violated his state and federal constitutional right to present a complete defense. (See generally U.S. Const., 5th, 7th & 14th Amends.; Crane v. Kentucky (1986) 476 U.S. 683, 690 [the federal Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense]; United States v. Owens (1988) 484 U.S. 554, 558 [the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose infirmities through cross-examination, thereby calling to the fact finders attention reasons for giving scant weight to a witnesss testimony]). Here, the trial court based its ruling denying Whites request to recall officers to testify about defense exhibit A on the ground that defense counsel had defense exhibit A before trial. Therefore, defense counsel could have, but failed to, cross-examine Officers Aguiar, Devee, and Linn about any inconsistency between Peoples exhibit 1 and defense exhibit A. Because defense counsel had defense exhibit A before trial, it is doubtful, on this record, that the trial court abused its discretion or that Whites constitutional rights were violated.

In any event, we need not decide the issue because any error was harmless under both People v. Watson (1956) 46 Cal.2d 818, 836 and Chapman v. California (1967) 386 U.S. 18. Four of the officers involved in the undercover operation testified. Officer Aguiar testified he bought a substance resembling rock cocaine from White. Either White or Ingram confirmed that the substance was rock cocaine. Officer Aguiar gave the items he bought to Officer Linn. Office Linn took those items and tested them with a Wells test kit, before they were ever tested by the criminalist. The Wells test result was positive for cocaine base. The criminalist also testified that the items he tested were cocaine base.

Given these facts, any error in refusing Whites request to recall officers to testify about defense exhibit A was harmless.

II. Sufficiency of the evidence of the prison priors.

An amended information alleged that White had served two prior prison terms under section 667.5, subdivision (b) (section 667.5(b)). White waived a jury trial on the allegations. At Whites court trial on his priors, Whites trial counsel stated that his client would admit his priors. The People took Whites admissions. White now contends that he did not admit and the prosecution did not prove each element of the section 667.5(b) sentence enhancement allegation.

Section 667.5(b) provides: [W]here the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction. Due process requires the prosecution to prove each element of a sentence enhancement beyond a reasonable doubt. (People v. Tenner (1993) 6 Cal.4th 559, 566.) A sentencing enhancement under section 667.5 requires proof that the defendant (1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction. (Id. at p. 563.) The enhancement may not be imposed for any prior felony for which the defendant did not serve a prior separate prison term. ( 667.5, subd. (e).)

Here, the focus is on element three, namely, did the prosecution prove that White served a prison term for each conviction and that he served a separate prison term for each conviction? At the sentencing hearing, the People did not mention that third element. Rather, the People inquired of White:

[Q.] And, Mr. White . . . it is alleged against you that you suffered two prior convictions pursuant to Penal Code section 667.5(b); firstly, in case number FWV021822, for a violation of Penal Code section 666, with a conviction date of January 29, 2001, out of San Bernardino Superior Court; secondly, in case number KA035831, for a violation of Penal Code section 666, with a conviction date of May 13, 1997, out of Los Angeles Superior Court. [] It is also alleged that pursuant to Penal Code section 667.5, that you did not remain free of prison custody for and did commit an offense resulting in a felony conviction during a period of five years subsequent to the conclusion of said term. [] Mr. White, do you understand the prior convictions that have been alleged against you?

Defendant White: Yes, I do. The People then advised White of his constitutional rights, and asked if he wished to admit the prior allegations. White replied, yes, and the People then asked him, And, Billy Roy White, sir, do you admit that you suffered these two following prior convictions pursuant to Penal Code section 667.5(b): Firstly, in case number FWV021822 and case number KA035831? Do you admit these to be true, sir? White replied, Yes, and his counsel joined in the waivers and concurred in the admissions. The prosecution introduced no other evidence.

As support that his admissions were insufficient to support the section 667.5 allegation, White cites People v. Lopez (1985) 163 Cal.App.3d 946 (Lopez) and People v. Epperson (1985) 168 Cal.App.3d 856 (Epperson). In Lopez, the Court of Appeal upheld the trial courts order striking two prior serious felony allegations, which the defendant had admitted. The allegations failed to specify, and the defendant was never asked to admit, that his burglary convictions were for residential burglaries, which would have qualified them as serious felonies under section 667, subdivision (a). (Lopez, at p. 950; but see People v. Thomas (1986) 41 Cal.3d 837, 839 [admission of burglary conviction without express admission of its residential character sufficient to permit imposition of serious felony enhancement].) Citing section 667.5(b), the court then noted that [defendants] admission that the prior convictions were valid cannot be construed as an admission of the allegations that he served prior, separate prison terms for each of those convictions. (Lopez, at p. 951.)

In Epperson, supra, 168 Cal.App.3d 856, 865, the courtalbeit in dictasimilarly stated that the defendants admission of the prior convictions did not include an admission of all the necessary elements of the enhancement alleged under section 667.5(b).

The People respond that Lopez and Epperson, to the extent they stand for reversal per se, are no longer good law. Citing People v. Mosby (2004) 33 Cal.4th 353, the People contend that this issue is reviewed using a totality of the circumstances test. The issue in Mosby was: When, immediately after a jury verdict of guilty, a defendant admits a prior conviction after being advised of and waiving only the right to trial, can that admission be voluntary and intelligent even though the defendant was not told of, and thus did not expressly waive, the concomitant rights to remain silent and to confront witnesses? (Id. at p. 356.) The court answered yes, if the totality of the circumstances surrounding the admission supports such a conclusion.

It is not clear, however, that a totality of the circumstances test applies where, as here, the claim is sufficiency of the evidence to support a sentencing enhancement allegation. In any event, regardless of whether that test applies, the evidence is insufficient to support the section 667.5(b) sentencing enhancement allegation.

Although a defendant who admits a charge of a prior conviction is held to have admitted as great a charge as is contained in the information, an admission of prior convictions cannot be construed as an admission that separate terms were served therefore, in the absence of an allegation in the information that the defendant served separate terms on the prior convictions. (People v. Welge (1980) 101 Cal.App.3d 616, 623.) The amended information here alleged that White suffered the two convictions. After listing the two convictions, the amended information alleged . . . that a term was served as described in Penal Code section 667.5 for said offense(s), and that the defendant did not remain free of prison custody for, and did commit an offense resulting in a felony conviction during, a period of five years subsequent to the conclusion of said term. The amended information does not allege that White served separate prison terms for the two convictions. Nor does the record show that the prosecutor, in taking Whites admission, ever mentioned either service of prison terms or service of separate prison terms. Also, the record does not show either that the amended information was read to White at his sentencing hearing or that he discussed it with his counsel.^[4]

Upon remand, the People may retry the section 667.5(b) allegation. (People v. Barragan (2004) 32 Cal.4th 236, 258-259.)

DISPOSITION

We remand this matter for retrial on the section 667.5(b) allegations only.

In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

KITCHING, J.

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^[1] Laverne Ingram, who has not appealed, was tried with White.

^[2] All further undesignated statutory references are to the Penal Code.

^[3] It is not clear exactly when the defense received Peoples exhibit 1. Defense counsel said he got it after trial started, when it was being presented to the first witness. The People also failed to disclose defense exhibit B before trial. Defense exhibit B, however, was merely a blow-up of Peoples exhibit 1.

^[4] The problem with the evidence is highlighted by what occurred when Whites codefendant, Ingram, was asked to admit his prior prison terms. Ingram gave an equivocal response when asked to admit his priors. The prosecutor then asked him to review his 969b packets and to discuss it with his attorney. After reviewing his 969 packets and talking to his attorney, Ingram admitted that he suffered prior convictions.