Opinion
B162928.
11-25-2003
THE PEOPLE, Plaintiff and Respondent, v. CHRIS LAMAR SMITH, Defendant and Appellant.
Rita L. Swenor, 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, and Susan D. Martynec and Marc J. Nolan, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Chris Lamar Smith appeals from a judgment of conviction entered after the jury found him guilty of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and of a smoking device (id., § 11364) and of driving with a suspended license (Veh. Code, § 14601.1, subd. (a)) and the court found true allegations that defendant previously had served two prison terms within the meaning of Penal Code section 667.5, subdivision (b). The court dismissed one of the prior prison term allegations in the interests of justice, after which it sentenced defendant to state prison for a term of three years.
Defendant contends the prosecutor committed prejudicial misconduct and the court abused its discretion by failing to dismiss the suspended license count so that he would have been eligible for drug diversion. Inasmuch as we discern neither prejudicial misconduct nor judicial abuse of discretion, we affirm the judgment.
FACTS
Suspicious because defendant had driven into the parking lot of a Santa Clarita strip mall and stopped sometime after 2:30 a.m., when the strip mall businesses were closed, Los Angeles County Sheriffs deputies approached defendant to ascertain his purpose. As defendant explained that he had stopped to use a nearby pay telephone, the deputies obtained his drivers license and checked Department of Motor Vehicle (DMV) records. The deputies then asked defendant to step out of the car and informed him that his license was suspended except for use in the course of employment.
Defendant said he was coming from a party but eventually would be going to work later that morning. The deputies placed defendant under arrest for driving with a suspended license, and then conducted an inventory search of his car, which they intended to impound. The deputies saw a glass pipe resting on the center console. It had white residue in the bowl that led them to suspect there were narcotics in the car. Further search yielded a clear plastic bag that contained what they believed to be a usable amount of powdered methamphetamine and a straw with white powder residue on it. There was a scale of the type used by narcotics sellers in a backpack in the trunk.
After waiving his constitutional rights, defendant acknowledged that the pipe, methamphetamine, straw and scale were his. There was .57 gram of methamphetamine, which amounted to 25 to 50 doses.
According to a DMV field representative, defendants drivers license had been suspended because he lacked proof of insurance when he had a car accident. Defendant could have paid a $250 financial responsibility penalty that would have allowed him to apply for a restricted license for use in traveling to and from his employment but had not done so. His license therefore was suspended for all purposes.
CONTENTIONS
Defendant contends the prosecutor committed prejudicial misconduct when he introduced impeachment evidence against the only defense witness as to the suspended license count, which evidence the trial court had ruled could not be admitted. Defendant has waived this claim on appeal and, in any event, any conceivable misconduct was not prejudicial.
Defendant asserts the trial court abused its discretion in failing to dismiss the misdemeanor suspended license count, which would have made defendant eligible for drug diversion. The court did not abuse its discretion.
DISCUSSION
Prosecutorial Misconduct
Before Casey Baron (Baron) testified for the defense, counsel and the court discussed what prior conduct could be used to impeach Barons testimony. The court ruled that the prosecutor could use only felony convictions or conduct underlying misdemeanor convictions. The prosecutor could not use Barons two juvenile adjudications, one for commercial burglary and one for resisting arrest, but if Baron admitted the conduct underlying the adjudications, the admissions would be proper impeachment. The prosecutor also could not use Barons recent admission that he stole liquor from a local grocery store, in that he was not charged with and convicted of that conduct. The recent admission might become proper impeachment, however, depending upon how Baron testified.
Baron testified that defendant had called him after midnight on the day of his arrest. Defendant told Baron that he would be picking him up later to help in delivering newspapers.
On cross-examination, Baron acknowledged that he had stolen more than once. He also acknowledged that he had been arrested for resisting a peace officer. In response to the courts question, Baron testified that his present age was 20 years.
On redirect examination, defense counsel asked Baron, "When the incidents that the district attorney just asked you about, stealing something and resisting, happened, were you 16 years old?" Baron responded, "Yes."
On recross-examination, the prosecutor asked Baron, "Actually, wasnt the last time that you stole something when you were . . . 20 years old?" Defense counsel did not object to this question, which Baron answered affirmatively.
To preserve on appeal the issue of prosecutorial misconduct, the defendant generally must object at the time the misconduct occurs and request a curative admonition to the jury. (People v. Avena (1996) 13 Cal.4th 394, 442.) We waive this requirement only when a prompt admonition would not have cured the harm caused by the misconduct (People v. Bradford (1997) 15 Cal.4th 1229, 1333; People v. Berryman (1993) 6 Cal.4th 1048, 1072) or objection would have been futile (People v. Hill (1998) 17 Cal.4th 800, 820-821).
This is not a case where prompt admonition would not have cured the harm or objection necessarily would have been futile. A prompt objection on the ground that the question overstepped the proper bounds of impeachment might well have been sustained, in which case an admonition to the jury that questions are not evidence would have cured any potential harm. Baron already had testified that he had stolen more than once. Learning that he had done so not only when he was 16 years old but also recently would not have been any more damaging to his credibility than his admission. In these circumstances, there is no reason to waive the requirement of timely objection and request for an admonition. Defense counsels subsequent request for a mistrial came too late. Defendant consequently has waived his claim of prosecutorial misconduct. (People v. Avena, supra, 13 Cal.4th at p. 442.)
In any event, even if the prosecutor committed misconduct by violating a court ruling to elicit inadmissible evidence (People v. Silva (2001) 25 Cal.4th 345, 373), a point we do not concede, defendant suffered no prejudice. As noted above, Baron already had admitted stealing more than once and resisting a police officer. That he had stolen recently as well as when he was 16 years old did not impair his credibility anymore than the information already before the jury. Moreover, Barons testimony did not provide a defense to the suspended license count. Regardless of what the deputies DMV search revealed, defendant was not privileged to drive in the course of his employment. His license was suspended for all purposes. Inasmuch as there is no reasonable probability defendant would have obtained a more favorable result in the absence of any possible misconduct, there is no ground for reversal. (People v. Barnett (1998) 17 Cal.4th 1044, 1133.)
Drug Diversion
Had defendant been convicted only of the nonviolent drug offenses, possession of methamphetamine and drug paraphernalia, he would have been eligible for drug diversion rather than incarceration. (Pen. Code, § 1210.1, subd. (a).) Because defendant also was convicted of driving with a suspended license, a misdemeanor that is not related to the use of drugs, he was ineligible for diversion. (Id., subd. (b)(2); People v. Superior Court (Jefferson) (2002) 97 Cal.App.4th 530, 535.)
Recognizing this, defense counsel requested that the court dismiss the driving with a suspended license misdemeanor, pursuant to Penal Code section 1385, in the interests of justice. Noting that defendant had been offered this option during pretrial negotiations but had rejected it in favor of going to trial, the court declined to exercise its discretion to strike the disqualifying misdemeanor.
Assuming for the sake of argument that the court had the power to strike the disqualifying misdemeanor, thus making an otherwise ineligible defendant eligible for diversion (but see In re Varnell (2003) 30 Cal.4th 1132, 1143-1144 ), the trial court did not abuse its discretion in declining to do so.
Any exercise of discretion for this purpose would be "guided by the same considerations as in all other cases where section 1385 is invoked." (People v. Superior Court(Jefferson), supra, 97 Cal.App.4th at p. 538.) It would be incumbent upon the court to consider factors "intrinsic to the sentencing scheme, such as `the nature and circumstances of the defendants present [offenses] . . . , and the particulars of his background, character, and prospects, along with societys declared interest in providing treatment as opposed to incarceration for certain nonviolent drug-dependent criminal offenders." (Ibid.)
Defendant was more than merely a non-violent drug abuser. He possessed 25 to 50 individual doses of methamphetamine plus a scale, thus raising a suspicion that he might have been selling the drug. He clearly did not take seriously the suspension of his driving privilege, as he continued to drive. The circumstances consequently were more consistent with general lawlessness rather than simple drug addiction. Moreover, defendants sudden interest in drug treatment after rejecting a pretrial offer of treatment appears to have been insincere, a circumstance the court rightly noted.
The courts decision to respect the eligibility requirements set forth in Penal Code section 1210.1, subdivision (b), conformed to both the letter and the spirit of the law. (People v. Williams (1998) 17 Cal.4th 148, 160.) There was nothing arbitrary, irrational or capricious about that decision and, thus, no abuse of discretion in making it. (Id. at p. 162.)
The judgment is affirmed.
We concur: ORTEGA, J., MALLANO, J. --------------- Notes: Because defendant does not challenge the sufficiency of the evidence to sustain his conviction, we summarize the facts only briefly.