Opinion
B228065
12-21-2011
THE PEOPLE, Plaintiff and Respondent, v. DONTE SANDFORD HALE, Defendant and Appellant.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Los Angeles County Super. Ct. No. PA066906?
APPEAL from the judgment of the Superior Court of Los Angeles County, Daniel B. Feldstern, Judge. Affirmed as modified.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
Donte Sandford Hale (appellant) was convicted by a jury of selling cocaine base. (Health & Saf. Code, § 11352, subd. (a).) He appeals, contending that the court erred in allowing the prosecution to question him about the arresting officers' testimony and in ordering him to pay attorney fees of $350 pursuant to Penal Code section 987.8. We modify and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On March 5, 2010, Los Angeles Police Officers Robert Jaramillo, Carlos Sanchez, Jr., and Guadalupe Ruiz were working with several other officers on an undercover narcotics operation on Columbus Avenue and Parthenia Street in Los Angeles. Officer Jaramillo was standing outside an apartment complex. He asked a woman, Dianne Lewis, if she would help him purchase narcotics, and she said she had to call her "guy." She called someone on a pay phone and told Officer Jaramillo that he would be there in 10 minutes. Lewis asked Officer Jaramillo for money and he gave her $40 in prerecorded bills. They walked up to a gate of an apartment building. Appellant approached the gate from the other side and asked them what they were looking for. Appellant walked into the courtyard of the apartment building and briefly talked to another man, later identified as Peralta. Peralta and appellant came back to the gate and told Officer Jaramillo and Lewis, "We'll serve you at the corner." Lewis and Jaramillo walked about 30 feet away to the street corner. Peralta came out of the gate and walked up to them. They gave Peralta their money and he gave them several rocks of crack cocaine in exchange. Peralta went back to the apartment gate and showed appellant the money. A third man, identified as Nunez, joined them and took the money. Officers Sanchez and Detective Ruiz observed the transaction and were listening to Jaramillo through a hidden microphone. The officers then arrested appellant and the two other men.
At trial, Officers Ruiz, Sanchez, and Jaramillo testified and identified appellant in court. Lewis testified but said she did not recognize appellant.
Appellant testified that on the day of the incident, he was home in his apartment. He went outside to smoke a cigarette and saw Peralta, whom he recognized as someone from the neighborhood. He asked Peralta for a light, and Peralta told him to wait. Peralta walked over to Nunez, handed him some money, and then the officers arrested appellant, Peralta, and Nunez. Appellant said he had never done any work for Peralta or Nunez in connection with any narcotics transactions, nor had he gotten any money from them.
Towards the end of the prosecution's cross-examination of appellant, the following colloquy occurred:
"[The prosecutor:] Now, you heard the officers testifying in this case, right? [¶] [Appellant:] Yes, I did. [¶] Q You were sitting here the entire time, listening to the officers testify? [¶] A Yes. [¶] Q And you heard these officers testify that you came to the front gate — [¶] A Yes, I did. [¶] Q — and that you spoke to the undercover officer; is that correct? [¶] A Yes, I did. [¶] Q You're saying that that didn't happen; is that correct? [¶] A That never happened. [¶] Q Do you have any idea why three officers would say that you came to the gate — [¶] [Defense counsel]: Objection. [¶] [The prosecutor]: — and spoke to the undercover officer? [¶] [Defense counsel]: Calls for speculation. [¶] THE COURT: I don't want you to speculate, but if you believe you have a reason that you know, you may answer. Otherwise, I don't want you to speculate. [¶] [Appellant]: No. [¶] [The prosecutor]: You've never met these officers before; is that correct? [¶] [Appellant]: I've never met them before, no. No."
During closing argument, the prosecutor stated, "I'd like to point your attention to what's significant was yesterday when [appellant] was asked, is there any reason why you've heard three officers come in here and testify that you were there at the front gate and that you made these statements? Do you know why they would do that? Is there any reason why three officers would come in and say that you were there if you weren't there? And that's [appellant's] opportunity to explain if there is any kind of a reason. He had no reason. I said, is there any reason why? Why would they do that? And he said, I don't know. Is there any reason? No. And why is there no reason that an officer, that three officers would come in and say that [appellant] was there if he wasn't there? There's no reason for them to do that because that's not what happened. Because he was there. The officers came in and testified that he was there because he was there. There's no reason for him — for them to come in and say he wasn't or that he was there when he wasn't. So this is the type of analysis that you're going to have to do when you go back into the jury room. You have to follow the instructions to come to reasonable conclusions, accept reasonable conclusions, and reject anything that's unreasonable. And the defendant's testimony yesterday — was it reasonable? Not even in the slightest. So you can completely, if you all agree it's unreasonable, you can completely reject it."
Defense counsel did not object to these statements.
DISCUSSION
I. The Cross-examination of Appellant Was Proper
Appellant contends that the trial court erred when it allowed the prosecutor to pursue his line of questioning about whether appellant thought the officers were lying.
The Evidence Code prohibits testimony based on conjecture or speculation. (Evid. Code, § 702.) Lay opinion about the veracity of another is inadmissible, but only if the witness has no personal knowledge. (People v. Melton (1988) 44 Cal.3d 713, 744.)
In People v. Zambrano (2004) 124 Cal.App.4th 228, the defendant was also arrested following a narcotics transaction on the street. He testified that he was at the scene but did not participate in the transaction. The prosecutor asked him if the officers were lying when they testified that he was involved in the transaction. The prosecutor then argued in closing that defendant was not credible. The Court of Appeal held that the prosecutor's questions called for irrelevant and speculative testimony, since he had no basis for insight into the officers' bias, interest, or motive to be untruthful. (Id. at p. 241.)
In People v. Chatman (2006) 38 Cal.4th 344, the defendant was questioned about the credibility of three witnesses who knew him and provided incriminating testimony. (Id. at pp. 378-379.) On appeal, he also complained that the questions were improper and amounted to prosecutorial misconduct. The Chatman court contrasted its case from the facts in Zambrano, finding that because the defendant knew the witnesses he could provide a motive for their dishonesty.
In the present case, appellant was present at the scene of the sale. "A defendant who is a percipient witness to the events at issue has personal knowledge whether other witnesses who describe those events are testifying truthfully and accurately. As a result, he might also be able to provide insight on whether witnesses whose testimony differs from his own are intentionally lying or are merely mistaken." (People v. Chatman, supra, 38 Cal.4th at p. 382.) Appellant denied he was the person involved in the sale, implicitly charging that the officers could not be believed. "It was permissible for the prosecutor to clarify [appellant's] own position in this regard. It was also permissible to ask whether he knew of facts that would show a witness's testimony might be inaccurate or mistaken, or whether he knew of any bias, interest, or motive for a witness to be untruthful. The cross-examination was legitimate inquiry to clarify [appellant's] position. The questions sought to elicit testimony that would properly assist the trier of fact in ascertaining whom to believe." (Id. at p. 383.)
Appellant argues he did not know the officers, thus he could have offered no relevant testimony on their reasons for giving false testimony. As a result, he urges, the question necessarily asked for an irrelevant and speculative answer. We disagree. Appellant was not asked whether the officers were lying. The question posed was whether he "had any idea" why the officers testified that he was the individual who spoke to the undercover officer. Appellant could have proffered nonspeculative testimony as to why the officers were mistaken, such as the presence of a man who looked like him, the fact that a number of people were milling around the area, or the absence of sufficient lighting at the location. That he was unable to give a reason does not mean the question was improper. We discern no error.
II. The Attorney Fee Order Must Be Stricken
At sentencing, the court imposed various fees and fines, which were recorded in the minute order. Also recorded in the minute order, but not mentioned at the hearing, is an order for appellant to pay attorney fees of $350 for his appointed counsel pursuant to Penal Code section 987.8. Because the record of the court's oral pronouncement of sentence controls over the minute order, we will strike the attorney fee order. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
The judgment is modified by striking the trial court's order imposing attorney fees under Penal Code section 987.8. The superior court clerk is directed to correct the abstract of judgment. In all other respects the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA, J.
We concur:
WILLHITE, Acting P. J.
MANELLA, J.