P. v. Deayon
Filed 1/18/07 P. v. Deayon CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, Plaintiff and Respondent, v. OMAR P. DEAYON, Defendant and Appellant. | 2d Crim. No. B188306 (Super. Ct. No. BA279034) (Los Angeles County) |
Omar P. Deayon was convicted by jury of selling a controlled substance. (Health & Saf. Code, § 11352, subd. (a).) In a bifurcated proceeding, the trial court found that appellant had suffered a prior drug conviction (Health & Saf. Code, § 11370.2, subd. (b)) and a prior prison term (Pen. Code, § 667.5, subd. (b)). Appellant was sentenced to eight years state prison. He appeals, contending that the conviction is not supported by the evidence and that he was denied effective assistance of counsel. We affirm,
Facts
On the evening of February 17, 2005, a narcotics surveillance team observed appellant standing across from the Ross Hotel near the intersection of Seventh and San Julian Streets, Los Angeles. It was a high narcotics area where homeless people congregated
Officers Robert Smith and Anthony Suviate were in a building about 90 feet from appellant. Using binoculars, they saw appellant talk to Janet Williams and walk southbound on San Julian Street. Williams followed about five feet behind appellant. Appellant was " dressed clean" and stood out from the other people in the street.
A black male who appeared to be homeless approached and handed appellant money. Appellant put the money in his front pants pocket, spoke to Williams, and directed the man to Williams. Williams was holding a clear plastic baggie of off-white solids and handed some of the solids to the man. Based on his training and experience, Officer Smith believed appellant and Williams were selling narcotics.
A few minutes later, Officer Smith saw a second homeless man give appellant money. Appellant put the money in his front pants pocket and directed the man to Williams. Williams removed off-white solids from the baggie and handed the solids to the second man.
Officer Smith radioed a team of officers to make an arrest. As officers approached, several people yelled " one time" to warn that the police were coming.[1] Appellant and Williams quickly walked away. Williams cupped her left hand, raise her hand to her face, and put the plastic baggie in her mouth.
After Williams was detained, she spit the plastic baggie on the ground. The baggie contained .26 grams of rock cocaine and had a street value of $25. Appellant had a large wad of money in his right front pants pocket. The money totaled $897 and was in small denominations: 18 twenty-dollar bills, 20 ten-dollar bills, 28 five-dollar bills, and 197 one-dollar bills.
Sufficiency of the Evidence
Appellant argues that the evidence does not support the conviction. As in every sufficiency-of-the-evidence case, we " consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. . . . The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. [Citations.]" (People v. Mincey (1992) 2 Cal.4th 408, 432.) On review, we may not substitute our judgment for that of the jury , reweigh the evidence, or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
In order to convict the prosecution had to prove that appellant sold a controlled substance with knowledge of both its presence and illegal character. (CALJIC 12.02; People v. Daniels (1975) 14 Cal.3d 857, 861.) " The crime[] can be established by circumstantial evidence and any reasonable inferences drawn from that evidence. [Citations.]" (People v. Meza (1995) 38 Cal.App.4th 1741, 1746.)
The evidence showed that appellant and Williams acting as a team, sold rock cocaine. Two officers saw Williams speak to appellant and follow him into the street. Williams stood behind appellant, holding a baggie of off-white solids that appeared to be rock cocaine. Two different buyers approached, paid appellant, and were directed to Williams who handed them off-white solids from the clear plastic baggie. Each transaction took about 30 seconds.
Based on their observations, training and experience, Officers Smith and Suviate opined that appellant and Williams worked in concert to sell drugs. Appellant acted as the go-between and took the money. (See e.g., People v. Taylor (1959) 52 Cal.2d 91, 94 [use of go-between to sell drugs].) Officer Smith testified that it was a common drug sales technique. " Someone . . . holds the dope and someone else holds the money. They hide it. . . . You have to sit there and watch them for a while to figure out what's going on."
" In cases involving possession of [cocaine] experienced officers may give their opinion that the narcotics are held for purposes of sale based upon such matters as the quantity, packaging and normal use of an individual; on the basis of such testimony convictions of [sale or] possession for purpose of sale have been upheld. [Citations.]" (People v. Newman (1971) 5 Cal.3d 48, 53.)
The same principle applies here. Two officers saw appellant and Williams sell a controlled substance packaged in a clear plastic baggie. The officers' testimony was corroborated by the large wad of cash in appellant's pocket and the baggie of off-white rock cocaine. Appellant and Williams attempted to flee with the cocaine but were detained. After Williams spit the baggie out, it was found to contain .26 grams of off-white rock cocaine.
Appellant asserts that the conviction is not supported by the evidence because the buyers were not arrested and no cocaine was found on his person. The same argument was made at trial and rejected by the jury. " A conviction for selling controlled substances does not require proof of possession at all, much less possession of a usable quantity. [Citations.]" (People v. Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524.) The evidence showed that appellant and Williams sold a controlled substance. (See e.g., People v. Taylor, supra, 52 Cal.2d at p. 94 [drug sale through associate or agent]; People v. Lampkin (1960) 183 Cal.App.2d 102, 105 [same].)
Ineffective Assistance of Counsel
Appellant argues that he was denied effective assistance of counsel during jury voir dire. To prevail on the claim, appellant must show deficient representation and resulting prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693]; People v. Bolin (1998) 18 Cal.4th 297, 333.)
Before trial, the prosecution filed a motion to introduce evidence of prior criminal conduct pursuant to Evidence Code section 1101, subdivision (b). Attached to the motion was an arrest report relating to appellant's 2003 conviction for sale of rock cocaine.[2] The trial court stated that it would bifurcate the prior conviction allegations but " [t]here is another issue that pops up . . . . [T]hat, of course, would go to the 2003 prior. That would be [an] 1101[(b)] evidence issue, and so even though there's the motion to strike or bifurcate those priors, if I do rule in favor of the People on that 1101[(b)] evidence, it will be coming in . . . ." The trial court deferred ruling on the motion.
During jury voir dire, defense counsel asked a prospective juror (Juror No. 6) whether he would be biased or prejudiced if he learned that appellant had a prior conviction for selling drugs.[3] The juror stated that he was inclined to think appellant was guilty but agreed to remain objective and follow the trial court's instructions.
Counsel asked two other prospective jurors and the jury panel whether they could be fair and impartial if appellant had a prior conviction for selling drugs.[4]
After the jury was selected, the prosecution decided not to introduce evidence underlying the 2003 conviction.
Appellant argues that counsel should have requested a ruling on the motion before jury selection. As a result of the error, counsel inadvertently revealed that appellant had a prior drug conviction. In a motion for new trial, appellant argued: " The cat was . . . out of the bag. Mr. Deayon was . . . branded by his own attorney as a dealer in rock cocaine . . . ." The trial court denied the motion for new trial on the ground that voir dire is a matter of trial tactics. It found that appellant received effective assistance of counsel.
We concur. The purpose of voir dire is to assist counsel in exercising peremptory challenges. (Mu'Min v. Virginia (1991) 500 U.S. 415, 431 [ 114 L.Ed.2d 493, 509]; People v. Sanders (1990) 51 Cal.3d 471, 506-507.) Counsel utilized voir dire to determine whether the jurors would be biased or prejudiced if prior crimes evidence was introduced. In the words of the trial court: " Everyone has a different reason for using certain trial tactics . . . [¶] . . . [¶] [E]ven though . . . there was no presentation of that evidence, if the lawyer hadn't asked any questions of the jury panel and if, in fact, the circumstances had been different, then I would be hearing the same claim of ineffective assistant of counsel . . . ."
The record is silent as to why counsel questioned prospective jurors about appellant's prior drug conviction. Counsel may have believed that the trial court would grant the Evidence Code section 1101, subdivision (b) motion and that the prior crimes issue should be addressed in voir dire. In the alternative, counsel may have inartfully asked the questions as hypotheticals to determine whether the jurors could remain objective. On review, we may not second-guess counsel's tactical decisions. (People v. Milner (1988) 45 Cal.3d 227, 238.) " '[E]ven 'debatable trial tactics' do not 'constitute a deprivation of the effective assistance of counsel.' [Citations.]" (People v. Weaver (2001) 26 Cal.4th 876, 928.)
Assuming, arguendo, that trial counsel was ineffective in voir diring prospective jurors, there was no resulting prejudice. (People v. Williams (1988) 44 Cal.3d 883, 937.) The jurors stated that they would remain objective and only consider the evidence. After the prosecution withdrew the Evidence Code section 1101, subdivision (b) motion, the jury heard no evidence about a prior drug offense. The jury was instructed that statements or questions of attorneys was not evidence (CALJIC 1.02), that it must decide the case based on the evidence, and that it was not to be influenced by prejudice or bias. (CALJIC 1.00.) It is presumed that the jury understood and followed the instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.)
Appellant's assertion that he was denied a fair trial is without merit. The evidence clearly supported the verdict. But for counsel's purported errors, it is not reasonably probable that appellant would have received a more favorable verdict. (See e.g., People v. Rogers (2006) 39 Cal.4th 826, 861.)
Pitchess Motion
Before trial, appellant brought a Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531) to discover prior incidents of excessive force and dishonesty by Officer Smith and Sergeant McInnis. Sergeant McInnis was the watch commander who approved appellant's booking report. The Pitchess motion alleged that Sergeant McInnis asked appellant to " tell us where the guns are or we're going to hook you up with the lady who had drugs on her[.]"
The trial court did not err in denying the discovery motion as to Sergeant McInnis. A Pitchess motion must provide a " specific factual scenario" establishing a " plausible factual foundation" for an allegation of police misconduct. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 85-86.) Sergeant McInnis was not involved in the surveillance, detention, search, or arrest of appellant. Nor did he testify at the preliminary hearing or trial. Appellant failed to show " a logical link between the defense proposed and the pending charge . . . [and] articulate how the discovery being sought would support such a defense or how it would impeach the officer's version of events." (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1021.)
As to Officer Smith, the trial court conducted an in camera examination of confidential records and found no reported incidents or complaints of fabrication. Pursuant to appellant's request, we have reviewed the sealed transcript of the in camera hearing and conclude that the trial court did not abuse its discretion. (People v. Mooc (2001) 26 Cal.4th 1216, 1229; People v. Hughes (2002) 27 Cal.4th 287, 330.)
The judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, Acting P.J.
We concur:
COFFEE, J.
PERREN, J.
Michael K. Kellogg, Judge
Superior Court County of Los Angeles
______________________________
Jeanine G. Strong, 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, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Yun K. Lee, Deputy Attorney General, for Plaintiff and Respondent.
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[1] Officer Suviate testified: " This block, San Julian, it's a fairly long block . . . . As soon as the police car gets anywhere within that block the drug dealers will employ people to yell [']one time['] so they know when the police department is coming. When they yell [']one time['] the drug dealers generally will walk very quickly or run off of the block . . . . "
[2] The 2003 conviction was based on a similar sales scheme in which appellant held the cocaine and a second person acted as the go-between and took money from the buyer. The trial court characterized it as " a role reversal, but the same thing divided[.]"
[3] Defense counsel asked Juror No. 6: " In this case if you found out that Mr. Deayon, the defendant in this case, had a prior or had sold drugs at one time, would that then cause you to be biased against him or to be prejudiced against him in hearing the evidence in this case?"
[4] Counsel asked Juror No. 24 and Juror No. 35 if they could be fair and impartial if the evidence showed that appellant had a prior conviction for selling drugs. Counsel then asked the jury panel: " Please raise your hand if the evidence that was presented to you was not sufficient for you to vote guilty that he sold rock cocaine on February 17, of 2005, but you found out that he sold rock cocaine in another year in 2004, would that make you vote guilty that he sold it on February 17, 2005, in spite of the fact that the evidence was not . . . enough to prove [guilt] beyond a reasonable doubt? "
