P. v. Barnes

Filed 1/29/07 P. v. Barnes CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Los Angeles County. John Murphy, Commissioner. Affirmed.

Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaimie L. Fuster and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted appellant Claud Barnes of possession of a controlled substance (cocaine) in violation of Health and Safety Code section 11350, subdivision (a). The trial court suspended imposition of sentence and placed appellant on formal probation for 36 months.

Appellant appeals on the grounds that: (1) the trial court prejudicially erred in admitting appellants incriminating statement that was provoked by the arresting deputys conduct in violation of appellants Miranda rights,[1]and (2) the trial court prejudicially erred by allowing appellant to be impeached with a misdemeanor conviction for receipt of stolen property, since this crime did not involve moral turpitude.

FACTS

I. Prosecution Evidence

Deputy Jeffrey Knittle of the Los Angeles County Sheriffs Department was working patrol on December 31, 2004, with his field supervisor, Sergeant Sylvies. At approximately 5:00 p.m., the deputies car approached appellant, who was standing on or near the curb in the 1300 block of West Avenue J-3 in Lancaster. Deputy Knittle saw appellant look at the deputies and then drop something from his left hand to the ground. The deputies stopped the car and Sergeant Sylvies picked up the item, which Deputy Knittle recognized as a glass pipe of the type that is used with rock cocaine. The pipe appeared to have cocaine residue on it. Deputy Knittle searched appellant and found two rock-shaped objects that he recognized as cocaine base in appellants left front jacket pocket. When Deputy Knittle removed the cocaine base from appellants pocket, appellant looked down and just sort of shrugged, he was getting ready for New Years. There was no one else within 20 feet of appellant, and Deputy Knittle did not notice anyone working on a car within five feet of appellant. Appellant was taken to the Lancaster sheriffs station where he was booked.

On cross-examination at appellants trial, Deputy Knittle acknowledged that, although he stated at appellants preliminary hearing that he did not enter the booking cage, he was present. He stated that the prosecutor had asked him to refresh his recollection about the booking process. Deputy Knittle testified that he searched appellant in the booking area for any other paraphernalia or contraband. He acknowledged that in the field he had found on appellant a small plastic baggy with several Viagra pills and a pair of glasses. He listed all items on the booking slip as property with the exception of the Viagra because medication cannot be booked. The Viagra was thrown in the trash and considered destroyed. Sergeant Sylvies placed all of appellants property in a bag and the bag was sealed.

Sergeant Sylvies did not recall finding any Viagra pills on appellant, and he did not see Deputy Knittle recover any Viagra or dispose of any. Sergeant Sylvies stated that Deputy Knittle was incorrect when he stated that prescription medicine cannot be bookedit is properly booked if it has the correct label in place.

The parties stipulated that the rock-like objects recovered by Deputy Knittle and Sergeant Sylvies consisted of approximately 0.14 grams of solid substance containing cocaine base.

II. Defense Evidence

Lamason Waller (Waller) testified that he had been friends with appellant for 20 years and was with appellant on the evening in question. Waller was working on the brake lights of his car. He and appellant had both consumed alcohol. He did not see appellant in possession of a pipe or any type of narcotics. Waller saw a patrol car speeding down the street past them, and a group of kids broke up and ran.

The patrol car turned around and came back towards Waller and appellant, who was laughing. The officer in the car asked appellant in an angry way if he knew who lived in a certain building. Appellant told him that a James Watts lived there. The officer then said, come here, but appellant said he was not going anywhere or something to that effect. Waller did not see appellant holding anything, nor did he see appellant drop an object. When the officers got out of the patrol car, Waller continued working on the car because he did not want to get stopped. He did not see the officers search appellant. It seemed as if it took only seconds for the officers to jump out, grab appellant, and put him in the car and leave. Waller acknowledged that he had suffered a felony conviction in 1994 for narcotics sales.

Appellant testified that he was with Waller on the date in question. Before the deputies arrived he was standing between two cars and coaching Waller on the car repair. He said there were from three to five people there drinking. The deputies drove past him and turned into a driveway, chasing away some young adults and children. Waller and appellant laughed. The car turned around and stopped between three to five feet from appellant and Waller. Deputy Knittle asked appellant if he knew who lived in the apartment building. Everyone froze, and appellant was the only one who responded. Appellant answered, James Watts, and the deputy called him a smart ass and said You come here. Appellant said, I am not coming no where, and the deputy said, Dont make me get out of the car.

Following the deputys orders, appellant walked toward the deputy. Appellant had no pipe and no cocaine base on him. The other officer picked something up when directed to do so by Deputy Knittle. The officer came back with a pipe and laid it on the hood or the trunk of the patrol car. Deputy Knittle put handcuffs on appellant without explanation. Deputy Knittle searched appellants pant pocket and he come out like look what I found here. Appellant was wearing a sweater that had only one pocket in the front with two openings for keeping ones hands warm.

The stop, search, and detention occurred in a matter of seconds. Appellant told Deputy Knittle that he had been drinking and that they were getting ready for the New Years thing. Deputy Knittle told appellant he smelled like a distillery. All the other people remained there until appellant was driven away.

On the way to the station, Deputy Knittle pulled over and told appellant that if appellant told him where the drugs were hidden, the deputies would let appellant go. Appellant said he did not know. Deputy Knittle asked appellant if he had any medical problems and appellant replied he had had cancer and a stroke and was on medication. Deputy Knittle told appellant he had better say he had no medical problems. At the station, when a deputy asked appellant if he had any medical problems, Deputy Knittle grabbed appellants arm and answered for him, saying, hes drunk and he has drugs on him in his system.

Appellant had seven Viagra tablets, which Deputy Knittle took away from him during the booking process. After he was released he tried to make a complaint that the officers had stolen his Viagra.

A videotape of appellants booking process was played for the jury. It showed one deputy holding something up as appellant handed over his property. Appellant identified the object the deputy was holding as his Viagra. The other deputy, Deputy Knittle, then picked up the item. The item was not placed in the plastic bag of appellants property. Appellant acknowledged his 1999 misdemeanor conviction.

III. Rebuttal Evidence

Deputy Knittle testified that he did not plant drugs on appellant and had no cocaine or pipe in his possession when he arrived at the scene. He did not speed down the street toward a group of young people, and there were not four or five people standing in the area near appellant. He did not tell anyone that appellant smelled like a distillery and did not recall any indication appellant had been drinking. He did not call appellant a smart ass.

According to Deputy Knittle, the patrol car made no stops on its way to the Lancaster sheriffs station. Sergeant Sylvies did all the medical screening for the booking packet and most of it was completed in transit, but he did not hear appellant say he had suffered from cancer and a stroke. Deputy Knittle did not tell the person at the desk that appellant was drunk and under the influence of cocaine. The Viagra was contained in a plastic bag that was folded up and it bore no name or doctors name.

DISCUSSION

I. Admission of Appellants Statement

A. Proceedings Below

At a pretrial proceeding, defense counsel sought to exclude a statement made by appellant; i.e., that [he] was just getting ready for New Years. Counsel also sought to exclude Deputy Knittles testimony at the preliminary hearing that appellant said he was preparing for a New Years celebration. Counsel asserted that appellants statement was made in violation of Miranda. When the court inquired regarding the context of the statement, counsel replied that, according to the preliminary hearing testimony, Deputy Knittle saw a glass pipe drop from appellants hand. He retrieved the item and searched appellants pocket, where he found the contraband. As Deputy Knittle held the contraband steady in his hand so that he and appellant could look at it, appellant reportedly kind of shrugged his shoulders and said he was preparing for a New Years celebration. Citing Rhode Island v. Innis (1980) 446 U.S. 291, 301 (Innis), counsel stated that the disputed issue was whether taking the contraband out of the pocket and holding the hand steady for the purpose of looking at it was meant to elicit an incriminating response.[2] The prosecutor argued that the statement from appellant was spontaneous.

The court held a hearing on the issue, and Deputy Knittle was called to testify. Deputy Knittle acknowledged that he immediately knew what the two rocks were upon looking at them. He and appellant looked at the rocks at the same time after Deputy Knittle pulled them out of the pocket. Deputy Knittle was behind appellant, slightly to appellants left, with his foot in between appellants feet. He pulled the rocks out of appellants left jacket pocket. Deputy Knittle said he held the rocks in his hand in a position where he and appellant could both see them, but he was not necessarily showing them to appellant. Deputy Knittle did not extend his arm forward to show the rocks to appellant but simply held out his hand to the left of both of them. Appellant saw the items in Deputy Knittles hand at the same time as Deputy Knittle. Appellant made the remark about New Years Eve within a second of the drugs being pulled out. Appellants pockets were slash pockets on the front of his jacket at stomach level.

The court agreed with the People and found there was no Miranda issue, stating It sounds like a spontaneous statement, and I think that some of the officers gestures on the witness stand describing what he did, I notice that he flicked his wrist over. Why he used the word steady at the preliminary hearing, I have no idea, but I do not see any issues. So that motion is denied.

B. Appellants Argument

Appellant contends the court erred in denying appellants motion to exclude his statement. He argues that Deputy Knittle was aware the substance was cocaine, and it is apparent that he purposely showed or allowed appellant to see the cocaine as a ruse in expectation that appellant would make an incriminating response. According to appellant, the failure to administer Miranda warnings creates a presumption that appellants statement was compelled by Deputy Knittles conduct. In view of that presumption, the prosecutor did not meet its burden of showing the statement was voluntarily given, and the statement should have been excluded.

C. Relevant Authority

[T]he scope of our review of constitutional claims of this nature is well established. We must accept the trial courts resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported. [Citations.] However, we must independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged statement was illegally obtained. [Citation.] [Citations.] (People v. Crittenden (1994) 9 Cal.4th 83, 128.)

[I]nterrogation under Miranda refers not only to express questioning, but also 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. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response. (Innis, supra, 446 U.S. at pp. 301-302, fns. omitted.)

D. No Interrogation or Equivalent

Appellant claims that Deputy Knittle likely wanted to establish appellants knowledge of the drugs presence and his ownership of the contraband and chose a simple ruse to accomplish this. We conclude that the deputys gesture was not an action that would be included in Inniss definition of interrogation.

In Innis, a police officer transporting a murder suspect to jail told an accompanying officer that he hoped the gun the suspect was thought to have used would be found, since there was a danger that a student from a nearby school for handicapped children could pick it up and be injured. (Innis, supra, 446 U.S. at pp. 294-295.) Upon hearing this, the suspect directed police to the place where the gun was hidden. (Id. at p. 295.) The Innis court held that the brief conversation between the officers did not constitute an interrogation because it was nothing more than a dialogue between the two officers to which no response from respondent was invited. (Id. at p. 302.) Furthermore, the conversation was not the functional equivalent of interrogation because there was nothing in the record to suggest the officers were aware that the suspect would be susceptible to such an appeal to his conscience and that their conversation was reasonably likely to elicit an incriminating response. (Id. at pp. 302-303.)

The instant case is analogous to People v. OSullivan (1990) 217 Cal.App.3d 237 (OSullivan), which followed the rationale of Innis. In OSullivan, the defendants property bag was searched when she was transferred from one county jail to another. (Id. at p. 240.) One deputy searched the defendants property and found in the bottom of a deodorant container two small clear plastic bags containing a white powder, which later proved to be methamphetamine. On making the find, the deputy turned to her colleague and said, I believe I have something here. The defendant turned around and looked toward the deputy and the powder and said, oh, oh. (Ibid.) On appeal the defendant contended that the trial court should not have admitted her oh, oh statement because she had received no Miranda warnings. (OSullivan, supra, at p. 241.) The appellate court held that the statement was the type of spontaneous utterance admissible even in the absence of Miranda warnings. (OSullivan, supra, at pp. 240, 241.)

In analyzing the first component of the Innis definition of interrogation, OSullivan stated that the first inquiry is whether the police conduct was the type of conduct reasonably likely to elicit an incriminating response, which is an objective inquiry. (OSullivan, supra, 217 Cal.App.3d at p. 242.) The court stated that the mere fact that appellant might have actually perceived the deputys remark was directed to her does not signify that the officers conduct was the functional equivalent of an interrogation. (Ibid.) The second component of the inquiry is whether the deputy should have known that her remark was likely to elicit an incriminating response. (Ibid.) The court held that there was no basis for finding that the deputy should have known that her quick, informative remark, made contemporaneously with her discovery, was reasonably likely to elicit an incriminating response. (Id. at p. 243.) The deputys remark was the type of comment normally attendant to arrest and custody and specifically excluded by Innis from the definition of interrogation. (OSullivan, supra, at p. 243, citing Innis, supra, 446 U.S. at pp. 301-302.)

The instant case is the conduct equivalent of the deputys remark in OSullivan. Deputy Knittles momentary act of holding the cocaine in his hand immediately after pulling his hand from appellants pocket was an act normally attendant to arrest in the case of a search for contraband, and the gesture was made contemporaneously with his discovery. Appellant had to turn his head to the left to see what Deputy Knittle held in his hand, and Deputy Knittle neither commented on his discovery nor asked for appellants comment. Appellant was not even subject to a quizzical look by Deputy Knittle, since the deputy testified that he at no time made eye contact with appellant as he stood on appellants side and slightly behind him. Deputy Knittle merely extracted the contents of the pocket, flicked his wrist to one side, as the court stated, and opened his hand to see what it held. Clearly, the deputy merely wished to visually verify that he held what his tactile sense had indicated to him. No reasonable person would believe that this gesture of a seconds duration called for a response, and there was nothing in the record to show that Deputy Knittle should have known that his quick hand movement was reasonably likely to elicit an incriminating response. We conclude there was no Miranda violation.

E. No Prejudice

Even assuming a Fifth Amendment violation, it would have been harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.)

Appellant claims that the trial was a contest between the credibility of appellant and Waller versus Deputy Knittle, and that Deputy Knittle was effectively impeached by evidence of the theft of appellants Viagra during booking. According to appellant, admission of his statement tipped the scales of justice against him, and had it not been admitted the jury would have rendered a more favorable verdict beyond a reasonable doubt.

We disagree with appellant and believe he exaggerates the degree of effectiveness of his impeachment of Deputy Knittle. Although appellant accused Deputy Knittle of stealing his Viagra tablets, Deputy Knittles explanation that the tablets were thrown out is not inconsistent with what occurred during the booking process. The fact that Deputy Knittle did not recall he was in the booking cage during his testimony at the preliminary hearing did not bear on the events that occurred in the field where the contraband was found. The jury was properly instructed on the evaluation of a witnesss credibility, including the existence or nonexistence of a bias, interest, or other motive. (CALJIC No. 2.20.) Deputy Knittle, as he testified, had nothing to gain and everything to lose by giving detailed false testimony on the occurrences. Appellants account, on the other hand, strained credulity, and his other witness, Waller, did not see the search. Finally, appellant himself admitted telling Deputy Knittle that he was getting ready for the New Years thing, although he characterized it as a remark referring to his drinking. Therefore, even if the statement should have been excluded, it was harmless error to admit it. (Chapman v. California, supra, 386 U.S. at p. 24.)

II. Impeachment of Appellant at Trial

A. Proceedings Below

Prior to appellants testimony, the prosecutor informed the court that he wished to impeach appellant with a 1999 misdemeanor conviction for receiving stolen property (Pen. Code, 496). The prosecutor asserted that a certified copy of the minute order was sufficient proof of the conviction under Evidence Code section 452.5. Defense counsel argued that the prosecutor was limited to using the underlying behavior of the misdemeanor, which had to be proved by witnesses. The court ruled that the prosecutor could introduce the record of the misdemeanor conviction pursuant to Evidence Code section 452.5.

B. Appellants Argument

Appellant claims the trial court erred by allowing appellant to be impeached with a misdemeanor conviction for receipt of stolen property because the crime did not involve moral turpitude. Appellant asserts that receiving stolen property can be committed by wholly passive conduct and therefore does not involve moral turpitude under the least adjudicated elements test of People v. Castro (1985) 38 Cal.3d 301, 316-317 (Castro). Appellant further argues that Ninth Circuit cases interpreting the Federal Rules of Evidence, rule 609(a)(2), which provides for impeachment of witnesses, have found that shoplifting, burglary, receipt of stolen property, and other theft offense are not per se crimes of dishonesty.

Appellant argues that he was seriously prejudiced by the introduction of his misdemeanor conviction. He claims there was a reasonable possibility that the jury would have believed appellant and Wallers version of events if they had not learned of the prior conviction because the defense successfully attacked Deputy Knittles veracity. (Castro, supra, 38 Cal.3d at p. 319; People v. Watson (1956) 46 Cal.2d 808, 836.)

C. Relevant Authority

The trial court has broad discretion to admit or exclude impeachment evidence. (See People v. Gurule (2002) 28 Cal.4th 557, 619.) Its discretion will not be disturbed, unless there is a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.] (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

Castro defined moral turpitude as the general readiness to do evil. (Castro, supra, 38 Cal.3d at p. 314; accord, People v. Barnett (1998) 17 Cal.4th 1044, 1126-1127.) Moral turpitude does not depend on dishonesty being an element of the crime. (Castro, supra, at pp. 314-315.) According to Castro, only if the least adjudicated elements of the conviction necessarily involve moral turpitude is the conviction admissible for impeachment. (Id. at p. 317.) The least adjudicated elements test means that from the elements of the offense alonewithout regard to the facts of the particular violationone can reasonably infer the presence of moral turpitude. (People v. Thomas (1988) 206 Cal.App.3d 689, 698.)

D. Forfeiture; No Error

As noted previously, appellants arguments against use of his prior misdemeanor conviction were restricted to arguing against the validity of the hearsay exception contained in Evidence Code section 452.5, which allowed for admission of a certified copy of the minute order. Appellant did not claim that his prior offense was not a crime of moral turpitude. Therefore, he has forfeited this issue on appeal. The failure to object and assert the specific ground waives a claim for appeal. (Evid. Code, 353, subd. (a); People v. Pinholster (1992) 1 Cal.4th 865, 935.)

In any event, we find appellants argument without merit. He asserts that, unlike possession of a firearm by a felon, possession of stolen property does not necessarily indicate that the accused will use it to do evil. Rather, the accused may possess the property simply for his or her own enjoyment, without involving other people.

The California Supreme Court has stated that [b]oth robbery and receiving stolen property necessarily involve moral turpitude. [Citations.] (People v. Turner (1990) 50 Cal.3d 668, 705.) As stated in People v. Rodriguez (1986) 177 Cal.App.3d 174, 179 (cited in People v. Turner, supra) [a]lthough it is not a specific intent crime, a necessary element of the offense of receiving stolen property is actual knowledge of the stolen character of the property. [Citation.] One who unlawfully acts in disregard for the property rights of others, whether known or unknown, demonstrates moral laxity and to some degree a readiness to do evil.[3] Appellants argument is without merit.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

__________________, P. J.

BOREN

We concur:

____________________, J. ___________________, J.

DOI TODD ASHMANN-GERST

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

[2] The prosecutor conceded there had been a detention and search.

[3] Penal Code section 496 provides in pertinent part that [e]very person who buys or receives any property that has been stolen . . . , knowing the property to be so stolen or obtained, . . . shall be punished by . . .