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People v. Abraham

California Court of Appeals, Second District, Sixth Division
Jul 28, 2008
No. B195544 (Cal. Ct. App. Jul. 28, 2008)

Opinion

NOT TO BE PUBLISHED

Superior Court County No. NA070672, of Los Angeles

Joan Wolff, under appointment by the Court of Appeal, for Defendant and Appellant Abraham.

Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant Parks.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Alene M. Games, Deputy Attorney General, for Plaintiff and Respondent.


PERREN, J.

Victor Abraham appeals his conviction for transportation and sale of cocaine base (Health & Saf. Code, § 11352, subd. (a)), and possession of cocaine base for sale (§ 11351.5). He claims the evidence is insufficient to support the transportation and sale conviction, that the trial court erroneously denied his motion to sever his trial from that of codefendant Parks, admitted incriminatory statements by Parks in violation of People v. Aranda (1965) 63 Cal.2d 518, and Bruton v. United States (1968) 391 U.S. 123, and admitted speculative and irrelevant evidence.

All statutory references are to the Health and Safety Code unless otherwise stated.

Alan Parks appeals his conviction for transportation and sale of cocaine base. We appointed counsel to represent Parks who filed an opening brief raising no issues, and requesting this court to independently examine the record. (People v. Wende (1979) 25 Cal.3d 436.) We affirm the convictions of both Abraham and Parks.

FACTS AND PROCEDURAL HISTORY

Kelly Edwards was a civilian police informant. After giving her a "wire," two marked $20 bills and a cell phone, police detective Shea Robertson drove her to a location where she was instructed to buy cocaine while Robertson and other police officers watched.

At the location, Edwards inquired about the purchase of cocaine. When she did so, appellant Alan Parks told Edwards that he would make several telephone calls on her behalf. Some of the calls were made on the cell phone supplied to Edwards by the police. After the calls, Parks told Edwards that they would meet someone at a Rite Aid drugstore.

When they arrived at the Rite Aid store, Edwards gave Parks the marked $20 bills. Parks went into the store, but returned with the money saying the drug dealer had not arrived. A woman named Sheahan was also waiting to buy drugs from the same person. Appellant Abraham approached. Sheahan waived at Abraham, approached him, and gave him something.

Parks took the marked bills and went into an alley with Sheahan and Abraham. Shortly thereafter, Edwards followed Parks into the alley. Parks gave Edwards rock cocaine he had obtained from Abraham. Sheahan walked out of the alley with Abraham.

Police detained Parks in the alley. Officer Valenzuela saw Abraham walk out of the alley and into the Rite Aid store where he was detained by Officer Chavez. Abraham possessed a plastic zip lock bag containing several pieces of rock cocaine, as well as two cell phones and $182 in cash including the two marked $20 bills. He also had rock cocaine in baggies that had been pinned to his underwear. One of Abraham's cell phones showed that it had received several calls from the cell phone the police had issued to Edwards. Sheahan was also detained while in possession of a baggie of rock cocaine.

The amount of cocaine found on Abraham indicated that he was holding the cocaine for sale.

A jury convicted Abraham and Parks of the offenses, and the trial court found true allegations that Abraham and Parks had several prior convictions for drug offenses, and had served prison terms for certain of the convictions. (Pen. Code, § 667.5, subd. (b); 11370.2, subd. (a).) The trial court sentenced Abraham to an aggregate term of 12 years in prison, consisting of the five-year upper term for the transportation and sale offense, plus one year pursuant to Penal Code section 667.5, subdivision (b), and six years pursuant to section 11370.2, subdivision (a). The court sentenced Parks to an aggregate term of six years in prison, consisting of the three-year lower term for the transportation and sale offense, plus three years pursuant to section 11370.2, subdivision (a).

DISCUSSION

ABRAHAM APPEAL

No Error in Denial of Severance Motion

Abraham contends that the trial court abused its discretion in denying his motion to sever his trial from that of codefendant Parks. We disagree.

A joint trial is the norm when defendants are charged with common crimes involving common events and victims, but the trial court has discretion to order separate trials when a codefendant has made an incriminating confession, association between the defendants is unduly prejudicial, evidence on multiple counts is likely to confuse the jury, the defendants have conflicting defenses, or a codefendant might give exonerating testimony in a separate trial. (People v. Cleveland (2004) 32 Cal.4th 704, 726; People v. Hardy (1992) 2 Cal.4th 86, 167; Pen. Code, § 1098.) There was no abuse of discretion in this case.

Abraham moved to sever solely to avoid the admission of a statement by Parks to the police that incriminated Abraham by revealing that Parks knew Abraham was a drug dealer and had purchased rock cocaine from Abraham on at least 10 occasions. At the hearing, the prosecutor represented to the court that she did not intend to use that statement by Parks in her case in chief and, in fact, that statement was not offered into evidence at trial. The prosecution's representation removed the only basis for severance set forth in Abraham's motion.

No Aranda-Bruton Error

Abraham contends that the admission of other out-of-court statements by Parks incriminated him in the charged offenses and thereby infringed upon his constitutional right of confrontation. We disagree.

The admission of an out-of-court statement by one defendant in a joint trial that incriminates a codefendant violates that codefendant's right of confrontation and cross-examination, unless the incriminating portion of the statement is deleted without prejudice. (People v. Aranda, supra, 63 Cal.2d at pp. 530-531; Bruton v. United States, supra, 391 U.S. at pp. 135-136.) If the statement cannot be redacted without prejudice to the codefendant, the entire statement must be excluded or the defendants must be separately tried. (Aranda, at p. 531; Bruton, at p. 137.) Compliance with this rule is sufficient to prevent error under Crawford v. Washington (2004) 541 U.S. 36. (People v. Stevens (2007) 41 Cal.4th 182, 199; U.S. v. Lung Fong Chen (2d Cir. 2004) 393 F.3d 139, 150.)

When a statement is redacted to replace a reference to a codefendant with a reference to an unidentified person, the statement is admissible even if the jury could infer through the consideration of other evidence that the unidentified person is the codefendant. (Richardson v. Marsh (1987) 481 U.S. 200, 208, 211; People v. Aranda, supra, 63 Cal.2dat pp. 530-531.) A statement redacted in that manner is inadmissible only if the jury could identify the person as the codefendant without considering other evidence. (Gray v. Maryland (1998) 523 U.S. 185, 192-196.)

Here, Abraham challenges the admission of two out-of-court statements by Parks. One of the statements was made to informant Edwards and the other was made to Detective Robertson.

The prosecutor informed the court that Edwards was prepared to testify that Parks told her that they were waiting for "Victor" to complete the sale of rock cocaine. "Victor" is Abraham's first name. The trial court ordered the deletion of the name "Victor" from the testimony, and ruled that Edwards could testify that Parks told her they were waiting for "someone." Defense counsel then stated he "would go along with the court someone, not another male, but someone."

Edwards then testified that Parks told her that they had to walk to the Rite Aid store and "that we would meet up with someone there." She also testified that, after Parks came back out of the Rite Aid store, Parks told her that "the guy was not there."

Abraham argues that the redaction was insufficient and that the jury would realize that the references to "someone" and "the guy" were references to Abraham. We do not agree. Parks' statement that he was waiting for someone did not incriminate Abraham. Parks simply acknowledged the obvious fact he was waiting for another person to arrive so that the drug sale could be consummated. It was Abraham's appearance at the scene with cocaine that incriminated Abraham.

Although the jury might infer that the "someone" was Abraham, the inference could be derived from other evidence offered at trial. It was clear from other evidence that Parks was working with another person and waiting for that person to arrive. Such evidence showed that Parks was an intermediary in the drug sale, his task was to introduce Edwards to Abraham, Abraham appeared on the scene after being telephoned by Parks, and Abraham supplied the cocaine and received the money from the buyers. In fact, the references by Edwards to "someone" and "the guy" were unimportant in relation to the other evidence the jury considered. (See People v. Song (2004) 124 Cal.App.4th 973, 984-985.)

In his reply brief, Abraham argues that the testimony should have been excluded as hearsay. This claim has been waived because Abraham did not make a hearsay objection at trial. To be preserved for appeal, a timely objection must be made at trial on the same ground as is advanced on appeal. (People v. Waidla (2000) 22 Cal.4th 690, 717; People v. Champion (1995) 9 Cal.4th 879, 918, overruled on other grounds in People v. Combs (2004) 34 Cal.4th 821, 860.) Also, the claim was raised for the first time in Abraham's reply brief, and matters raised for the first time in a reply brief ordinarily will not be considered on appeal. (People v. King (1991) 1 Cal.App.4th 288, 297, fn. 12; People v. Adams (1990) 216 Cal.App.3d 1431, 1441, fn. 2.)

Abraham also challenges the admission of testimony from Detective Robertson regarding another out-of-court statement by Parks. Robertson testified that, after Parks was arrested, Parks told Robertson that a female approached Parks seeking to buy rock cocaine. Parks said he would help her because Parks "thought if he helped her that he would get kicked down some." The phrase "kicked down some" meant that Parks hoped that the drug dealer would give Parks a small amount of cocaine in payment for his help in making a sale. Abraham argues that admission of this testimony implicated Abraham in the sale of the cocaine by revealing that Parks was just a middleman in the transaction and that Abraham was the supplier of the drugs.

Abraham forfeited or waived this claim by failing to object to admission of the evidence at trial. (People v. Waidla, supra, 22 Cal.4th at p. 717; United States v. Olano (1993) 507 U.S. 725, 731.) And, contrary to Abraham's claim, the record does not show a pattern of adverse trial court rulings that would make an objection futile. (People v. Carrillo (2004) 119 Cal.App.4th 94, 101.) Abraham cites the court's denial of his motion to sever, failure to grant a motion limiting admission of statements by Parks in general, and admission of Edwards's testimony regarding the "waiting for someone" statement. The denial of the motions does not indicate how the trial court would rule on objections to specific evidence, and Edwards' redacted testimony does not indicate that objections to admission of other statements by Parks would be overruled.

On the merits, admission of the statement did not violate the Aranda-Bruton rule. Revealing Parks' hope to receive some cocaine in payment for his services did not implicate Abraham in particular. As we have previously stated, other evidence showed that Parks was a middleman, and that Abraham arrived at the scene with cocaine as a result of telephone calls from Parks and the expectation of meeting drug buyers.

No Error in Admission of Speculative Testimony

Abraham contends that the trial court abused its discretion in admitting speculative and irrelevant testimony by Edwards regarding the behavior of Sheahan and

the reason Sheahan was at the Rite Aid store. A trial court's decision to admit or exclude evidence is a matter committed to its discretion and will not be disturbed on appeal unless the court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Brown (2003) 31 Cal.4th 518, 534.) Here, there was no abuse of discretion.

Edwards testified that another woman later identified as Sheahan was waiting with her and Parks at the Rite Aid store. Edwards testified that the other woman was "on something, speed, you know, talking a mile a minute and ended up that she was also waiting to receive drugs . . . from the same person." Abraham moved to strike the reference to waiting for "the same person" as speculative. The trial court declined to strike the testimony.

When Edwards first saw Sheahan standing outside the Rite Aid store, Edwards would have had to speculate as to Sheahan's purpose. But, when Sheahan greeted Abraham upon his arrival, it became clear that Sheahan was waiting for Abraham. Edwards testified that she saw Abraham coming and Detective Oscar Valenzuela testified that Sheahan waived at Abraham and made a hand-to-hand transaction before going into an alley. Based on this record, we cannot conclude that the trial court abused its discretion.

In any event, any error would have been harmless because other evidence established that Sheahan was waiting for Abraham. It is not reasonably probable that the testimony had any impact on the verdict. (People v. Dennis (1998) 17 Cal.4th 468, 531.)

Substantial Evidence Supports Transportation and Sale Conviction

Abraham contends his conviction for the transportation and sale of cocaine base was not supported by substantial evidence. We disagree.

In considering a substantial evidence claim, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence which is reasonable, credible, and of solid value sufficient for a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. (People v. Prince (2007) 40 Cal.4th 1179, 1251.) "We presume '"in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." [Citation.] . . .'" (Ibid.)

There is evidence that Parks telephoned Abraham to inform him that he was with a cocaine buyer and that Abraham had cocaine to sell. There is evidence that Abraham met the proposed buyer, another buyer and Parks at a location arranged by Parks for a drug sale, and that Abraham brought cocaine with him. There is evidence that Abraham, Parks and Sheahan went into an alley to get out of public sight and that Parks gave Abraham the marked currency and other money and that Sheahan and Parks returned from the alley with cocaine, and that Parks gave the cocaine to Edwards. There is evidence that Abraham remained in possession of additional cocaine after the transactions in baggies pinned to his underwear.

Abraham does not contest this evidence but points out that no witness actually saw Abraham give cocaine to Sheahan or Parks, or saw that the marked currency found in Abraham's possession was actually handed to Abraham by Parks in return for cocaine. In essence, Abraham is interpreting the evidence in a manner that ignores all reasonable inferences.

PARKS' APPEAL

As stated, after reviewing the record, counsel for Parks filed an opening brief raising no issues and requesting this court to independently examine the record pursuant to People v. Wende, supra, 25 Cal.3d 436.

On April 18, 2007, we advised appellant that he had 30 days in which to submit a written brief or letter stating any contentions or arguments he wished us to consider. We have received no response from him.

We have examined the entire record and are satisfied that appellate counsel has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.)

The judgments are affirmed.

We concur: GILBERT, P.J., YEGAN, J., Charles D. Sheldon, Judge


Summaries of

People v. Abraham

California Court of Appeals, Second District, Sixth Division
Jul 28, 2008
No. B195544 (Cal. Ct. App. Jul. 28, 2008)
Case details for

People v. Abraham

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. VICTOR ABRAHAM et al., Defendants…

Court:California Court of Appeals, Second District, Sixth Division

Date published: Jul 28, 2008

Citations

No. B195544 (Cal. Ct. App. Jul. 28, 2008)