P. v. Johnson

Filed 6/28/06 P. v. Johnson CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Madera County. Jennifer R. S. Detjen, Judge.

Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, John G. McLean and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.

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On May 11, 2005, appellant Clavion Johnson was convicted after a jury trial of possession of cocaine base for sale (Health & Saf. Code, § 11351.5, count one) and transportation of cocaine base (Health & Saf. Code, § 11352, subd. (a), count two). In a bifurcated proceeding, Johnson admitted a prior prison term enhancement (Pen. Code, § 667.5, subd. (b)). The trial court sentenced Johnson to prison for the upper term of five years on count one and a consecutive term of one year for the prior prison term enhancement for a total prison term of six years.^[1] The court imposed a restitution fine and granted applicable custody credits.^[2]

On appeal, Johnson contends the prosecutor's questioning of him exceeded the scope of defense counsel's direct examination and that his counsel was ineffective for failing to object to the prosecutor's cross-examination.^[3] Johnson argues the trial court violated his Sixth Amendment right to a jury trial pursuant to Blakely v. Washington (2004) 542 U.S. 296 in sentencing him to the upper term.

FACTS

At 2:00 a.m. on May 17, 2003, Madera Police Officer Juan Villegas initiated a stop when he observed a Ford Contour without a rear license plate light. Johnson was driving with a passenger sitting next to him. When Villegas approached the vehicle, he smelled the odor of burnt marijuana coming from the car.

Villegas told Johnson that because of the odor of marijuana, he had the right to investigate. Johnson removed his seat belt and exited the car. Villegas conducted a pat down search and directed Johnson to sit on the curb. Villegas found two pairs of rubber gloves in an open section of the front dashboard. The gloves were wrapped around several small plastic baggies. Underneath the driver's seat, Villegas found a baggie containing 8.95 grams of cocaine base. Villegas denied that the items belonged to him or to his passenger.

After an inventory search, a small plastic baggie was found containing 1.40 grams of cocaine base. Villegas found smoking implements to indicate the cocaine base was going to be ingested. Each quantity constituted a usable amount of cocaine base.

Madera Police Sergeant Robert Blehm testified as an expert on illegal narcotics trafficking. Blehm explained that the baggies found in Johnson's car are a very common method of packaging a controlled substance for sale. Dealers often use rubber gloves to keep the narcotic off their hands and to leave the baggies free of fingerprints. According to Blehm, the amount of cocaine base for personal use generally weighs from .3 to .4 grams. Blehm explained that the typical user would not possess the amount of narcotic present in this case. Given the large amount of narcotic and the absence of paraphernalia to consume it, Blehm believed the narcotic was possessed for sale.

Blehm testified that in a prior court proceeding, Johnson said he did not know whose car he had been driving. He denied knowing to whom the car belonged, explaining it was the car in which he was picked up.^[4]

Johnson testified on his own behalf. He admitted two previous felony convictions for possession of stolen property and assault. Johnson explained the car he was driving on May 17, 2003, belonged to his sister. On cross-examination, Johnson again admitted he had prior convictions but added that they did not make him a drug dealer or transporter. This portion of Johnson's answer was not solicited by the prosecutor but was volunteered by Johnson. The prosecutor asked Johnson if he knew what crack cocaine was. Johnson began to answer that he did not know what it was, but acknowledged using crack cocaine as a kid. Johnson admitted having a cocaine addiction as a teenager. Johnson's counsel did not object to this line of questioning and he did not ask further questions on redirect examination.

SCOPE OF CROSS EXAMINATION

Appellant contends the prosecutor exceeded the scope of direct examination when he questioned appellant about his knowledge of narcotics. Appellant concedes his trial counsel failed to object to the prosecutor's questions, but argues his counsel was ineffective for failing to object. We find no merit to appellant's contention.

A defendant who takes the stand to testify in his or her own behalf waives the privilege against self-incrimination to the extent of all inquiries which would be proper on cross-examination. Such a defendant is subject to impeachment just as any other witness. The defendant waives the privilege with respect to any matter to which he or she testified expressly or impliedly on direct examination and that is relevant to impeach the defendant's credibility as a witness. (People v. Stanfill (1986) 184 Cal.App.3d 577, 581.)

Although the scope of permissible cross-examination in California is restricted to the scope of direct examination, when a defendant takes the stand and makes a general denial of the crime with which he or she is charged, the permissible scope of cross-examination is very wide. (People v. Saddler (1979) 24 Cal.3d 671, 679; also see Evid. Code, §§ 761, 772, subd. (d).) The rule limiting cross-examination to the scope of direct examination cannot reasonably be applied to cross-examination designed to impeach a witness. (In re Anthony P. (1985) 167 Cal.App.3d 502, 507.) A defendant cannot limit cross-examination to the precise facts to which he or she testifies. (People v. Lanphear (1980) 26 Cal.3d 814, 834.)

Here, appellant limited his testimony on direct examination to ownership of the car he was driving and admission of two prior felony convictions. When the prosecutor asked appellant on cross-examination whether it was true that he was convicted in 1998 of felony assault with force likely to inflict great bodily injury, appellant replied,

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