P. v. Seals

Filed 10/26/06 P. v. Seals CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Charles D. Sheldon, Judge. Affirmed.

Edi M. O. Faal for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Defendant and appellant, Elton Lydell Seals, appeals from the judgment entered following his conviction, by jury trial, for sale of a controlled substance (rock cocaine), with prior serious felony conviction findings (Health & Saf. Code, § 11352; Pen. Code, § 667, subd. (b)-(i)).^[1] Sentenced to state prison for 10 years, Seals claims there was trial error.

The judgment is affirmed.

BACKGROUND

Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, the evidence established the following.

On the afternoon of June 3, 2005, a group of Los Angeles police officers set out to make an undercover drug buy in Wilmington. Officer Romeo Rubalcava testified he was monitoring the activities of the other officers. He saw undercover officer Jose Calderon make contact with a man subsequently identified as Daniel Montoya.^[2] When other officers radioed Rubalcava that Montoya was walking toward a white Mercedes, Rubalcava drove his undercover car to the dirt lot where the Mercedes was parked. Rubalcava stopped where he could clearly see the Mercedes without any obstructions. The only person in the Mercedes was defendant Seals, who was sitting in the driver’s seat. Rubalcava saw Montoya approach the driver’s side of the Mercedes and engage in what appeared to be a hand-to-hand exchange with Seals. Immediately thereafter, Seals tossed something onto the ground. Rubalcava testified he saw “Montoya get down on his knees, and I specifically remember him picking up three items with his thumb and index finger because it was very obvious.” Rubalcava could not see what the three objects were. After picking up the items, Montoya walked back to where Officer Calderon was standing.

Rubalcava also testified that less than a minute after Montoya walked away from the Mercedes, a man subsequently identified as Gregory Lowe, who had been sitting in a car parked next to the Mercedes, walked over to the Mercedes and engaged in what appeared to be a hand-to-hand exchange with Seals. Again, Rubalcava could not see what was being exchanged. Lowe then walked over to stand in front of a motel.

Rubalcava testified Officer Calderon was new to the drug buy unit, and that this had been his first solo drug buy and the first time he had prepared the police report.

Officer Calderon testified that for the undercover operation he was in plain clothes and had been outfitted with a one-way radio transmitter. He had been given marked bills with which to make the drug purchase. Calderon initially asked two men on the street if they had any rock cocaine. Montoya approached Calderon and asked what he was looking for. Calderon asked for “a duv rock,” which he testified meant “$20 worth of rock.” Montoya said to give him the money. Calderon gave Montoya the marked money. Montoya said he was going across the street to a white car and he pointed to a dirt lot. Montoya went up to the white car and appeared to have a short conversation with someone. Then he came back and handed Calderon a green balloon. After Calderon opened the balloon and saw it contained an off-white solid resembling rock cocaine, he gave a signal alerting the other officers that a drug transaction had taken place.

Detective Kanchanamongkol was one of the supervising officers that day. He was parked nearby, monitoring Calderon’s radio transmitter. Kanchanamongkol saw Calderon make contact with Montoya, and over the transmitter Kanchanamongkol heard Calderon ask for drugs and Montoya say something in response. After Calderon apparently handed him the marked money, Montoya walked across the street to a dirt parking lot and approached the driver’s side of a white Mercedes. Montoya spoke to Seals, who was sitting in the Mercedes. A few seconds later, Montoya bent down to the ground and picked something up; Kanchanamongkol could not see what it was. Montoya then walked back to where Calderon was standing. Kanchanamongkol next saw Lowe get out of a Cadillac, which had been parked next to the Mercedes, and walk over to the driver’s side of the Mercedes. Lowe then walked from the Mercedes to the sidewalk, where he stood in front of a motel. Uniformed officers immediately swooped down and made arrests.

The marked money Calderon had given to Montoya was found in Lowe’s possession. The green balloon Montoya had given to Calderon contained .23 grams of cocaine in the form of cocaine base.

The defense did not present any evidence.

CONTENTION

The trial court erred by refusing to let Seals cross-examine Officer Calderon about parts of his police report.

DISCUSSION

Trial court properly rejected this use of Calderon’s police report.

Seals contends the trial court violated his confrontation clause rights when it prevented him from questioning Officer Calderon about three alleged false statements in Calderon’s police report. This claim is meritless.

Evidence Code section 1235 provides: “Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.”^[3] “Impeachment is the process of challenging or impugning the credibility of a witness. One commonly used method of impeachment is the adducing of evidence of a prior statement by the witness inconsistent with his testimony on the stand, for which purpose the statement is not considered to be hearsay. [Citation.]” (People v. Sam (1969) 71 Cal.2d 194, 208.) “In enacting section 1235 of the Evidence Code, the Legislature has retained the fundamental requirement that the witness’ prior statement in fact be ‘inconsistent with his testimony at the hearing’ before it can be admitted.” (Id. at p. 210.) “The receipt in evidence of a prior inconsistent statement does not violate the confrontation clauses of the federal and state Constitutions where the declarant testifies at trial and is subject to cross-examination. [Citations.]” (People v. Zapien (1993) 4 Cal.4th 929, 955.)

Seals’s defense counsel argued to the trial court that he should be allowed to impeach Calderon by confronting him with three particular portions of his police report, on the theory this hearsay was admissible because it fell within the exception for prior inconsistent statements. The three statements from Calderon’s police report were: (1) that Rubalcava and Kanchanamongkol saw Montoya walk up to Seals and speak to him; (2) that Kanchanamongkol saw Seals toss three small items from the Mercedes; and (3) that Kanchanamongkol saw Lowe walk up to Seals and then saw Seals hand something to Lowe. The trial court refused to allow this use of Calderon’s police report.

Seals now claims the trial court erred because these portions of the police report were admissible as prior inconsistent statements. Not so. These portions of Calderon’s police report could not be prior inconsistent statements because they were not inconsistent with his testimony. Calderon testified he accurately reported what the other officers involved in the operation told him they had observed. Calderon specifically testified he wrote down what Rubalcava and Kanchanamongkol told him they had observed. There was no contradiction between Calderon’s trial testimony and the three portions of the police report defense counsel wanted to ask him about.^[4] (See People v. Sam, supra, 71 Cal.2d at p. 209 [evidence improperly admitted as prior inconsistent statement because “there is no inconsistency and therefore no impeachment value in statements the witness claims to have forgotten”]; see also People v. Porterfield (1960) 186 Cal.App.2d 149, 159 [counsel properly used police report to refresh witness’s recollection: the report could not have been used improperly for impeachment because there was no inconsistency].)

Because the contested evidence was not admissible as a prior inconsistent statement, its exclusion by the trial court did not violate Seals’s right to confront witnesses.^[5]

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

ALDRICH, J.

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

^[2] Montoya was the codefendant at Seals’s trial.

^[3] Evidence Code section 770 provides: “Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or (b) The witness has not been excused from giving further testimony in the action.”

^[4] Calderon’s testimony did contradict a different portion of his police report, where he apparently had written he saw Montoya speak to the person in the white car. This contradiction was explored during Calderon’s cross-examination. The correct use of Calderon’s police report as a prior inconsistent statement would have been for impeachment of Rubalcava and Kanchanamongkol. This was done at the trial, for example, when Rubalcava was asked on cross-examination if Calderon’s report contained errors. Rubalcava testified: “[H]e actually has me observing Mr. Seals toss approximately three items from the vehicle. I never said that. I said I observed Mr. Seals toss something from the vehicle and then observed Mr. Montoya pick up three items . . . . [B]ut I never saw Mr. Seals toss three items. I saw . . . a hand motion tossing something, but I did not see the items.”

^[5] For the same reason, we reject Seals’s alternative claim the trial court’s ruling violated his due process right to a fair trial.