Opinion
A147157
09-27-2018
THE PEOPLE, Plaintiff and Respondent, v. GREGORY DICKERSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. C176766A)
Appellant Gregory Dickerson was convicted of two counts of selling cocaine base in violation of Health and Safety Code section 11352, subdivision (a), with accompanying true findings on two prior conviction enhancements. At trial, the judge allowed the prosecution to refuse a proposed stipulation from Dickerson as to the knowledge element of the crime and instead to put before the jury as proof of that element evidence of the circumstances surrounding one of the prior convictions. Dickerson now argues the trial court erred in admitting this evidence and by failing to strike the two enhancements. We conclude the trial court acted within its discretion in admitting evidence of the prior conviction and therefore affirm the convictions. We have no occasion to address the substance of Dickerson's second line of argument as we shall strike the enhancements pursuant to Senate Bill No. 180.
All statutory references are to the Health and Safety Code unless otherwise stated.
I. BACKGROUND
After receiving complaints from neighbors about an apartment complex located at 66th and Bancroft Avenue in East Oakland, the Oakland Police Department's Crime Reduction Team commenced an operation to combat drug dealings taking place in the vicinity. The operation included an undercover surveillance officer and about four arrest teams whose goal it was to spot individuals dealing narcotics and arrest them.
On June 3, 2015, at 5:30 p.m., Officer Tellez stationed himself in an unmarked Toyota across the street from the two-story apartment complex at the intersection of 66th and Bancroft. He sat in the backseat of the car on the passenger side and looked through the driver's side window. Once positioned, Officer Tellez observed four African American men hanging out around the front gate of the apartment complex. Officer Tellez did not believe these men to be residents of the apartment complex because he saw a couple of tenants walk past them without interacting or making eye contact. Of these four men, Dickerson stood out to Officer Tellez because he was the biggest, standing over six feet tall and weighing more than 200 pounds.
Shortly after arriving, Officer Tellez saw the first suspect buyer, a black male wearing a black Nike sweatshirt, approach the front gate of the apartment. The suspect buyer walked in the gate and looked around while two of the men inside nodded and signaled toward Dickerson. Officer Tellez witnessed the suspect buyer walk over to Dickerson and saw a quick hand-to-hand transaction between them; however, he was not able to identify what was exchanged. After the transaction, the suspect buyer walked away, pulled out a glass pipe, and began smoking what Officer Tellez believed to be cocaine base. Office Tellez did not order the arrest teams to apprehend him since he believed any evidence had already been consumed and his close proximity to the apartment could hinder the investigation.
About 10 minutes later, a second suspect buyer, a black male in a long sleeved checkered flannel, approached the apartment. Again, the suspect buyer was let in the gate and approached by Dickerson. Officer Tellez saw him hand Dickerson something with his left hand while Dickerson handed something to him with his right hand. He then saw Dickerson inspect the item, which Officer Tellez believed to be U.S. currency, by holding it up to the sun, and place it in his pocket. The suspect buyer then exited the gate and left. Officer Tellez contacted an arrest team who detained him out of view of the apartment complex. Upon his person, the officers discovered a twist of suspected cocaine base, which the suspect buyer stated he got from the liquor store down the street. He was not willing to identify who sold him the drugs or provide a written statement, so he was cited and released.
It is common for cocaine base to be sold in small plastic bags, referred to as "twists."
Around 6:00 p.m., Officer Tellez saw a third suspect buyer, this time a female, approach the gate of the apartment complex. She went through the gate and approached Dickerson, who was sitting on a brick wall, and placed a small object next to him, which he picked up and placed in his pocket. Officer Tellez then saw Dickerson take several small items in his hand and quickly hand one of them to the suspect buyer. She left about a minute after first entering the gate and placed something in front of her waistband. Officer Tellez communicated to an arrest team to apprehend the suspect. The arrest team detained her without incident and recovered a suspected twist of cocaine base from her pocket. A body camera worn by one of the arresting officers captured the interaction with the suspect buyer, who said she purchased the drugs from a bald guy off of 70th Avenue on the next block over. The officer asked whether it was 67th Avenue, and she said, "Oh, okay, right there."
Officer Tellez continued to observe Dickerson and the three other men for about 30 minutes until he saw them leave the apartment complex through the front gate and enter a blue GMC Yukon parked in a driveway up the street. Officer Tellez alerted the arrest teams to move in, block their vehicle, and arrest them. An officer pulled his patrol car in front of the Yukon, got out, and told Dickerson to put his hands up and then placed him in handcuffs. Officers searched Dickerson, who was calm and cooperative, and found a cell phone and $127, but nothing illegal was found on his person or in the car. Officers also searched the surrounding area, but were unable to find anything.
Both of the twists recovered from the suspect buyers were found to contain .37 grams of cocaine base. The weight of the narcotics was unusual as it was greater than that of most cocaine rocks sold in the area.
Before trial, both parties brought cross-motions in limine regarding admission, under Evidence Code section 1101, subdivision (b), of two prior incidents of misconduct that resulted in convictions by plea of possession for sale of cocaine base in 2004 and 2006. In his motion opposing admission of the evidence, Dickerson stated, "While the defense concedes that knowledge is an ultimate fact of this case, the defense is willing to stipulate that [Dickerson] would know the nature or character of cocaine."
At the hearing on the motion, the prosecution informed the trial court that it was not willing to enter such a stipulation. The prosecutor argued that evidence of the prior misconduct would assist in establishing the basis for Dickerson's knowledge that the two twists of cocaine seized were cocaine and that explaining Dickerson's knowledge through presentation of the prior incidents would carry more force and effect than simply telling the jury that Dickerson knows what cocaine is. The trial court weighed the probative value of the evidence against the potential for undue prejudice and concluded that some of the conduct resulting in the drug-related felony conviction from 2004—Dickerson was caught with 17 twists of cocaine base—was admissible for the purpose of showing knowledge, subject to a limited-purpose instruction. The trial court further characterized the prior conviction as a "drug-related felony," rather than a conviction of possession or possession for sale in order to sanitize the nature of the conviction. The trial court went on to deny a second motion to exclude the prior conviction made by Dickerson at the beginning of trial and a motion for a mistrial made after the prosecution's opening statement, finding the evidence of the prior conviction to be forceful in value, persuasive, and more probative than prejudicial.
At the conclusion of his trial, Dickerson was found guilty of two counts of selling cocaine base in violation of section 11352, subdivision (a). In a bifurcated proceeding, the court found Dickerson suffered two prior convictions within the meaning of section 11370.2. He then received a sentence consisting of the upper term of five years on count one, one year four months on count two, and three years for each of the two prior drug enhancements, pursuant to Penal Code section 11370.2, subdivision (a), for a total of twelve years four months.
This timely appeal followed.
II. DISCUSSION
Dickerson advances two primary arguments on appeal, claiming (a) the admission of the 2004 conviction for possession of cocaine violated his Fifth, Sixth, and Fourteenth Amendment rights to due process and a fair trial and (b) the trial court abused its discretion in failing to strike the drug enhancements and in sentencing him to the upper term. We reject the first argument and affirm the convictions but do not reach the second argument, since recent amendments to section 11370.2 require that the enhancements must be stricken and the sentence reduced accordingly.
A. The Trial Court Acted Within Its Discretion
Dickerson argues the admission of evidence related to his prior conviction was a violation of his Fifth, Sixth, and Fourteenth Amendment rights to due process and a fair trial. He contends the question whether the admission of evidence was constitutional is reviewed de novo (see People v. Cromer (2001) 24 Cal.4th 889, 893-894), while acknowledging that if this court concludes the issue presented is solely one of state law, the standard of review is abuse of discretion. (People v. Davis (2009) 46 Cal.4th 539, 602 (Davis); People v. Prince (2007) 40 Cal.4th 1179, 1237; People v. Rowland (1992) 4 Cal.4th 238, 264.)
In People v. Ghebretensae, the court stated: "The general rule is that the prosecution cannot be compelled to accept a stipulation for purposes of rendering evidence irrelevant if the effect would be to deprive the prosecution's case of its persuasiveness and forcefulness, unless the evidence is more prejudicial than probative. [Citations.] [¶] However, ' "[I]f a defendant offers to admit the existence of an element of a charged offense, the prosecutor must accept that offer and refrain from introducing evidence of other crimes to prove that element to the jury," [citation]' except 'if evidence remains relevant to an issue not covered by the stipulation . . . .' [citation] or, where the stipulation would drain the prosecution's case of its persuasive or forceful value [citation]. [¶] The trial court's decision on whether to force the prosecution to accept a stipulation in lieu of evidence is a matter within its discretion, as is its implicit resolution of the probative and prejudicial weight of the evidence." (People v. Ghebretensae (2013) 222 Cal.App.4th 741, 754-755.) The appellate court in Ghebretensae did not determine whether the trial court abused its discretion by admitting evidence of the defendant's prior drug offense in lieu of his proposed stipulation that "if the jury found him to have possessed the contraband he was aware of the character of the contraband as a controlled substance . . . ." (Id. at pp. 752, 755.) Instead, the court concluded any error was harmless. (Id. at p. 755.) What is most pertinent to this case is that, in our view, forcing the prosecution to accept Dickerson's proposed stipulation would have "drain[ed] the prosecution's case of its persuasive or forceful value. [Citation.]" (Ibid.)
We adopt that analysis in this case. What we have here is a run-of-the-mill evidentiary ruling under state law. It presents nothing of constitutional dimension even if there was error, which there was not. The trial court acted within its discretion in admitting evidence of Dickerson's prior conviction. Not only did the trial court carefully weigh and consider the countervailing probative and prejudicial values of the evidence multiple times, it also chose to sanitize the prior offense and include a limiting instruction. We therefore uphold the trial court's decision to admit the challenged evidence.
B. Dickerson Is Entitled to a Sentence Reduction
Subdivisions (a) through (c) of section 11370.2 create a series of sentencing enhancements for convictions for prior drug crimes. Defendants convicted of certain drug offenses receive an additional three-year sentence for each prior qualifying conviction. Those qualifying convictions, listed in section 11370.2, consist of 11 different drug offenses and conspiracy to commit them. Senate Bill No. 180 abolishes most of these enhancements. (Stats. 2017, ch. 677, § 1.) It removes 10 of the 11 qualifying prior convictions. The only remaining qualifying conviction is the use of a minor as an agent in the commission of a drug offense (§ 11380, subd. (a)). (Stats. 2017, ch. 677, § 1.) Put simply, section 11370.2 will now provide for a sentencing enhancement only if the defendant has a prior conviction under section 11380.
Generally, amendments to the Penal Code do not apply retroactively. (See Pen. Code, § 3.) This is, of course, an amendment to the Health and Safety Code, but Penal Code "section 3, and its identical counterparts in other codes (e.g., Civ. Code, § 3; Code Civ. Proc., § 3)" codify " 'the time-honored principle . . . that in the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature . . . must have intended a retroactive application.' [Citations.]" (People v. Brown (2012) 54 Cal.4th 314, 319.) Courts recognize an exception for amendments that reduce the punishment for a specific crime. (See id. at pp. 323-324.) Courts presume that the Legislature intended those amendments to apply retroactively to all nonfinal judgments. (Id. at p. 323.) This rule is called Estrada retroactivity, a denomination taken from In re Estrada (1965) 63 Cal.2d 740, 744. Embraced within it is a legislative abolition of a crime or enhancement. (See, e.g., People v. Rossi (1976) 18 Cal.3d 295, 301.)
Here, Senate Bill No. 180 abolishes numerous sentencing enhancements. Nothing in Senate Bill No. 180 indicates that the Legislature intended prospective-only application. (Stats. 2017, ch. 677, § 1.) Thus, Senate Bill No. 180 applies retroactively to nonfinal judgments. Because Dickerson's conviction is not yet final, Senate Bill No. 180 applies to this case. (People v. Vieira (2005) 35 Cal.4th 264, 305-306 ["a defendant generally is entitled to benefit from amendments that become effective while his case is on appeal"].) Dickerson received two section 11370.2 enhancements based on two prior convictions of violating section 11351.5 (possession for sale of cocaine base). Since Senate Bill No. 180 has gone into effect, a section 11351.5 conviction no longer qualifies for a section 11370.2 enhancement.
We therefore strike the two prior conviction enhancements and reduce Dickerson's sentence by a total of six years.
In his opening and reply briefs, Dickerson contends the court should not have selected the upper term for one count of conviction, but he only presents this point as part of his argument that the total sentence imposed by the court (approximately 12 years) was excessive. Because we are striking the two prior conviction enhancements based on the parties' supplemental briefs, Dickerson's resulting sentence will be significantly shorter. In that context, we find no merit to any argument that the court's selection of the upper term for one count was a reversible abuse of discretion.
III. DISPOSITION
The conviction is affirmed, but we strike the two prior conviction enhancements pursuant to Senate Bill No. 180, reducing Dickerson's sentence by six years, for a new total of six years four months.
/s/_________
Streeter, Acting P.J. We concur: /s/_________
Reardon, J. /s/_________
Schulman, J.
Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------