Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 50719815
Sepulveda, J.
Defendant Craig Lamont Brown was apprehended on an arrest warrant and a booking search at jail found that he had 18 baggies of rock cocaine and 11 baggies of methamphetamine concealed in his shoe. At trial, defendant admitted possessing the drugs but testified that the drugs were intended for his personal use to smoke with friends, not to sell. A jury rejected the defense and convicted defendant of transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)), bringing a controlled substance into jail (Pen. Code, § 4573), possessing methamphetamine for sale (Health & Saf. Code, § 11378), transporting cocaine base (Health & Saf. Code, § 11352, subd. (a)), and possessing cocaine base for sale (Health & Saf. Code, § 11351.5). The court sentenced defendant to a term of three years for possessing cocaine base for sale and made all other terms concurrent. Defendant appeals and, through appointed counsel, presents a number of evidentiary claims. We find no prejudicial error in the trial proceedings and affirm the judgment.
I. FACTS
In 2006, Deputy Sarita Ellison was a resident deputy to the North Richmond area whose responsibilities included patrolling the area and going to community outreach meetings. During three years as resident deputy, she found defendant loitering at Fifth and Grove, a known drug dealing corner, over 20 times. Defendant did not live in Richmond; he lived in Antioch. In August 2006, a warrant issued for defendant’s arrest for deterring Deputy Ellison in her course of duty after defendant threw a rocking chair at the deputy’s vehicle. (Pen. Code, § 69.)
On the morning of September 2, 2006, Deputy Ellison was patrolling North Richmond in a marked patrol vehicle when she recognized defendant driving a vehicle on the freeway. Deputy Ellison, with the assistance of other deputies, initiated a traffic stop to execute the arrest warrant. Deputy Ellison placed defendant under arrest and conducted a patdown search, finding nothing. The deputy handcuffed defendant and transported him to the Martinez jail. Defendant was not yet advised of his Miranda rights, such as his right to remain silent. (Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Before entering the jail, Deputy Ellison asked defendant “if he had any drugs or weapons or [drug] paraphernalia on his person” and told him “[i]f so, he needed to let [her] know prior to entering.” She told defendant that “[i]f he did have those things and brought them into the jail, he would be charged” with “bringing those items into the jail facility” along with being charged with possession. When defendant was asked if he had “any of those items on his person, ” he replied, “ ‘no.’ ”
Deputy Ellison brought defendant into the jail facility, and they were met by another deputy, Deputy Bryan Zaiser, who conducted a search of defendant’s person as part of the booking process. Before conducting the booking search, Deputy Zaiser asked defendant a question he poses to all arrestees arriving at the jail. Deputy Zaiser asks arrestees “if they have any weapons on them, any drugs, any[]more property, anything that will poke me, stab me, anything like that.” At trial, the deputy was asked the purpose of asking this question and he said: “A couple reasons; one is to see if [they] have any weapons or drugs. Weapons or drugs to make sure that they don’t bring that into the facility. Obviously, it’s a danger to the inmates inside [and] it’s a danger to staff. It’s public safety. We want to make sure that that stuff is not let into the facility at all.” When Deputy Zaiser asked defendant if he had “any of that” on him, defendant said he did not.
Deputy Zaiser proceeded to search defendant. The deputy examined defendant’s shoes and found a plastic bag containing a number of smaller plastic bags under the insole of defendant’s right shoe. Deputy Zaiser handed the large plastic bag to Deputy Ellison, who examined it and found it to contain 18 baggies of what appeared to be rock cocaine and 11 baggies of apparent methamphetamine. Later testing confirmed that the substances were cocaine and methamphetamine. Collectively, the rock cocaine weighed 2.31 grams and the methamphetamine weighed 2.4 grams. At trial, the street value of the drugs was estimated at about $400.
Upon discovery of the drugs, Deputy Ellison read defendant his Miranda rights, and he waived them. The deputy asked defendant why he did not tell her about the drugs in his shoe before entering the jail and defendant said: “ ‘Man, Sarita, I messed up.’ ” Defendant admitted to the deputy that the discovered bags contained rock cocaine and methamphetamine. Defendant said the drugs were for his personal use and that he smoked cocaine and methamphetamine combined with marijuana.
Deputy Ellison and a narcotics detective testified at trial that, in their expert opinions, defendant possessed the drugs for sale. The reasons underlying those opinions included the following facts: (1) defendant had multiple, individually bagged drugs in small quantities commonly sold on the street; (2) it is uncommon to combine the three drugs defendant claimed to use; (3) defendant did not possess any drug paraphernalia for smoking the cocaine or methamphetamine found in his possession; and (4) defendant did not appear to be under the influence of any drug nor suffering withdrawal.
Defendant testified in his own defense at trial. Defendant admitted having a felony conviction for deterring a police officer (Deputy Ellison) in her course of duty, the offense for which he was arrested in September 2006. (Pen. Code, § 69.) Defendant also admitted possessing drugs upon his arrest for that offense but testified the drugs were intended for his personal use to smoke with friends, not to sell. Defendant said he liked to combine cocaine and methamphetamine with marijuana, pack the mixture into a hollowed-out cigar, and smoke it. Defendant claimed that he bought the cocaine and methamphetamine found in his shoe from “a personal dealer” in North Richmond. Defendant said he bought enough drugs for him and his friends to smoke over the weekend. On cross-examination, defendant was asked the name of his dealer, and he answered, “Jerry”; defendant testified that he did not know the dealer’s last name. The prosecutor asked defendant where the dealer lived. Defendant said in “[t]he projects” but could not name the street even though that is where defendant said he bought drugs weekly. Defendant testified that he worked as a part-time landscaper for his mother-in-law and usually purchased only $20 to $30 worth of drugs at a time, when he was buying for himself alone.
Defendant’s mother also testified. Defendant’s mother owned the car in which defendant was arrested, and she reclaimed it from police storage. She said she found a lot of cut open cigars in the car when she reclaimed it.
II. DISCUSSION
Defendant claims that (1) police questions at the jail entrance asking defendant if he was in possession of drugs or weapons was in violation of Miranda, and his negative replies should have been suppressed; (2) police testimony that defendant had been seen loitering in known drug areas should have been excluded as impermissible character evidence; (3) the court erred in allowing defendant to be cross-examined on the facts underlying his conviction for deterring a police officer in her course of duty; and (4) the court erred in excluding testimony from defendant’s wife, mother, and friend concerning defendant’s drug use. We discuss each claim in turn.
Defendant’s opening brief also argued that Penal Code section 4573 (bringing a controlled substance into jail) does not apply to an arrestee who is found to possess a controlled substance during the booking process. Defendant abandoned that claim on appeal after the California Supreme Court held directly to the contrary under circumstances like those presented here. (People v. Low (2010) 49 Cal.4th 372, 376.)
A. Police questions at the jail entrance asking defendant if he was in possession of drugs or weapons was permissible under the public safety exception to Miranda and, in any event, any error was harmless
Upon arriving at jail for booking, Deputy Ellison and Deputy Zaiser separately asked defendant if he had weapons or drugs on his person, as described in detail above. Defendant said no to each deputy. At trial, defendant moved to suppress his statements as being elicited in violation of Miranda, supra, 384 U.S. 436, and the court denied the motion. Defendant claims on appeal that the trial court erred in admitting his statements into evidence. The court did not err. The police properly questioned defendant under the public safety exception to Miranda and, even if the police exceeded the narrow confines of that exception, the admission of defendant’s statements was not prejudicial.
The People offer several grounds for admission of the evidence, including the public safety exception. We find the public safety exception applies and do not reach the other grounds posited on appeal.
To safeguard the Fifth Amendment right against self-incrimination, Miranda generally precludes the admission in evidence of a suspect’s statements made during in-custody interrogation unless certain warnings (including advisement of the right to remain silent) precede the statements. (Miranda, supra, 384 U.S. at pp. 468-473.) There are exceptions.
In New York v. Quarles (1984) 467 U.S. 649, 657-658, the “public safety” exception was recognized. In that case, a woman told police she had been raped, that her assailant had a gun, and that the assailant had fled into a supermarket. (Id. at pp. 651-652.) The officers entered the supermarket and apprehended a suspect matching the description provided by the victim. (Id. at p. 652.) The police saw that the suspect was wearing an empty gun holster and asked where the gun was. (Ibid.) The suspect nodded toward empty cartons and said “the gun is over there.” (Ibid.) A police officer retrieved the gun, formally placed the suspect under arrest, and read him his Miranda rights. (Ibid.)
On these facts, the United States Supreme Court articulated a public safety exception to Miranda and held that the gun and suspect’s statement directing the police to the gun were fully admissible. (New York v. Quarles, supra, 467 U.S. at pp. 655-656.) The court noted that “[t]he police in this case, in the very act of apprehending a suspect, were confronted with the immediate necessity of ascertaining the whereabouts of a gun which they had every reason to believe the suspect had just removed from his empty holster and discarded in the supermarket. So long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety: an accomplice might make use of it, a customer or employee might later come upon it.” The court concluded that “the need for answers to questions in a situation posing a threat to the public safety outweighs the need for [Miranda’s] prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.” (Id. at p. 657.) The court was confident that “police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect.” (Id. at pp. 658-659.)
The public safety exception has been applied to situations like the one presented here, and permits an officer to ask narrowly tailored questions about weapons or drugs prior to the search of a suspect that are aimed at protecting the officer from personal injury or exposure to toxic substances. In United States v. Carillo (9th Cir. 1994) 16 F.3d 1046, 1049-1050, it was held permissible for an officer to ask an arrestee during a booking search if the arrestee had any drugs or needles on his person. In People v. Cressy (1996) 47 Cal.App.4th 981, 985, 988-989 (Cressy), it was held permissible for an officer to ask an arrestee if the arrestee had needles or drug paraphernalia on his person. In People v. Ross (2008) 162 Cal.App.4th 1184, 1187, 1191, it was held permissible for an officer to ask an arrestee during booking if she had any drugs or weapons on her person.
The situation here is comparable. Deputy Ellison, upon arriving at the jail, asked defendant “if he had any drugs or weapons or paraphernalia on his person” and told him “[i]f so, he needed to let [her] know prior to entering.” Deputy Zaiser, before conducting the booking search, asked if defendant had any weapons, drugs or “anything that will poke [him], stab [him], anything like that.” The reason for asking the questions was for public safety—the safety of the searching officer and the safety of the jail staff and inmates should the search fail to discover the contraband.
Defendant acknowledges the public safety exception to Miranda but argues that the deputies here exceeded the narrow confines of that exception. His argument rests upon observations made in Cressy, supra, 47 Cal.App.4th at p. 989, where the court emphasized that an officer’s inquiry preceding the search of a suspect “must be narrowly tailored to prevent potential harm. Questions about needles or other potentially contaminated sharp objects would be permissible. General questions like ‘What’s in your pockets?’ are overly broad. Allowable questions may only address the presence of items that might be harmful if they were seized without anticipation and particular caution. Questions about drugs in general, most firearms or similar kinds of seizable, but not immediately dangerous items would fall outside this narrow exception.”
The questions here lie somewhere between the police question sanctioned in Cressy that asked a suspect if he had “needles or paraphernalia on his person” and the hypothetical question the court criticized as overly broad that asks a suspect “ ‘What’s in your pockets?’ ” (Cressy, supra, 47 Cal.App.4th 985, 989.) We believe the questions here are close to the question found permissible in Cressy, especially Deputy Zaiser’s routine question to all arrestees as to whether “they have any weapons on them, any drugs, any[]more property, anything that will poke [him], stab [him], anything like that.”
In any event, even if the police questions were overbroad and the trial court erred in admitting defendant’s statements, the error was harmless. Defendant did not make any incriminating statements in response to the police questioning. Defendant simply said no, he did not have drugs or anything that would poke or stab the deputies. Defendant maintains that admission of these denials prejudiced him because defendant was found to possess drugs and this put his credibility at issue in a case where credibility was important. Defendant argues that erroneous “admission of evidence showing [defendant’s] willingness to lie would have prejudiced him in the jury’s consideration of the believability of his testimony that he possessed the narcotics for personal use, not for sale.” But defendant’s claim of possession for personal use was contradicted by overwhelming evidence apart from any credibility assessment. Defendant’s false denials to the police were a minor aspect of the case given his possession of multiple baggies of both cocaine and methamphetamine concealed in his shoe. On similar facts, our Supreme Court held that a defendant was not prejudiced by any error in failing to suppress defendant’s booking statement that he did not possess drugs when a later search discovered drugs. (People v. Low, supra, 49 Cal.4th at pp. 392-393.) The court found defendant’s statement that he did not possess drugs “though demonstrably false and arguably indicative of a consciousness of guilt, assumed only slight significance in the context of all the other evidence at trial.” (Id. at p. 393.) The same is true here.
B. Police testimony that defendant had been seen loitering in known drug areas was properly admitted
Deputy Ellison testified that she found defendant loitering at Fifth and Grove, a known drug dealing corner, over 20 times prior to his arrest. Defendant objected to this evidence as unduly prejudicial and impermissible character evidence. (Evid. Code, § 352, 1101.) The prosecution argued that the evidence was relevant to prove defendant’s intent, and the court admitted it on that basis. The evidence was properly admitted.
Evidence of a person’s character, including evidence of specific instances of prior conduct, is inadmissible when offered to prove the person’s conduct on a specified occasion. (Evid. Code, § 1101, subd. (a).) But evidence of prior acts is admissible when relevant to prove some fact (such as motive, intent, or plan) other than his or her disposition to commit the crime. (Evid. Code, § 1101, subd. (b).) Here, the evidence was relevant to prove that defendant possessed drugs with the intent to sell them. As the People argue on appeal, “[i]t is reasonable to infer an intent to sell contraband” from the fact that defendant was “observed repeatedly loitering in an area that people frequent for the specific purpose of buying and selling contraband.” Defendant argues that the inference is speculative, and that Deputy Ellison’s testimony should have been excluded as more prejudicial than probative. We disagree. It is true, of course, that defendant was seen only loitering, not engaging in drug sales. But the many instances of loitering coupled with the fact that defendant did not live in the area were sufficiently suggestive to permit admission of the evidence. The weight to be accorded the evidence was for the jury to decide.
C. Any error in allowing defendant to be cross-examined on the facts underlying his prior conviction was harmless
In pretrial proceedings, the prosecution stated its intention to impeach defendant’s credibility—should he testify—with defendant’s prior felony conviction for deterring a police officer in the performance of her duty, which was the offense underlying the arrest warrant leading to discovery of the drugs. (Evid. Code, § 788; Pen. Code, § 69.) Defendant had been convicted of throwing a rocking chair at Deputy Ellison during her pursuit of a fleeing vehicle. The court ruled the prior conviction admissible.
Defendant did testify at trial and, when he did so, defense counsel elicited information about the conviction. The direct testimony on the subject was as follows: “Q. Mr. Brown, do you have a felony conviction for delaying a police officer in her course of duty? [¶] A. Yes, I do. [¶] Q. Was that Officer Sarita Ellison who testified in this case earlier? [¶] A. Yes, it was. [¶] And that incident occurred on August 12th of 2006? [¶] A. Yes, ma’am. [¶] And the arrest warrant that you were arrested on September 2nd was as a result of that case; is that correct? [¶] A. Yes, Ma’am.” Defendant also testified on direct examination about his arrest. Defendant said, “I was so disgusted and I was basically crying when I was arrested, because I really didn’t know what I was being arrested for. So once we got to the jail, I was just really just—I mean, I was basically out of my mind.”
The prosecution expanded on the subject in cross-examination. The prosecution, over defense objection, asked about some of the facts underlying the conviction, including its occurrence “in the middle of the night at Third and Silver” Streets and the fact that defendant was “convicted of throwing a rocking chair at Deputy Ellison.” The prosecutor also questioned defendant’s claim that he was frightened and puzzled by his arrest, asking how defendant could be unaware that throwing a rocking chair at a moving police vehicle might lead to his arrest. Defendant insisted that he never thought his conduct would cause a warrant to be issued for his arrest.
On appeal, defendant argues that the court erred in allowing defendant to be cross-examined on the facts underlying his conviction for deterring a police officer in her course of duty. Prior cases have held that impeachment does not extend to the facts underlying prior convictions. (People v. Smith (2003) 30 Cal.4th 581, 633.) The reasoning of the trial court in permitting the cross-examination is not altogether clear on this record because most of defense counsel’s objections were discussed in sidebar conferences. However, the defense and prosecution did memorialize some of the discussions later in the record, after the jury went home for the day. The prosecution argued that the defense had opened the door to questions about the underlying facts of the conviction by straying beyond the bare fact of the conviction on direct examination and introducing some underlying facts, like Deputy Ellison’s involvement. The prosecution also noted that defendant said he was frightened by his arrest, and the prosecution felt it proper to explore that subject and the reasonableness of defendant’s claimed fear and puzzlement at being arrested when he had thrown a chair at a police vehicle.
Arguably, the prosecution did no more than expand upon topics raised during direct examination. If the prosecutor did go too far into the facts of the conviction on cross-examination, any error was harmless. Defendant was convicted of attempting, by means of threat or violence, from deterring or preventing a police officer from performing her duty. (Pen. Code, § 69.) The jury was entitled to know this and to weigh the conviction when assessing defendant’s credibility. (Evid. Code, § 788.) The only additional information elicited by the prosecutor was that defendant threw a rocking chair at a police vehicle in the middle of the night. These underlying facts are not inflammatory and not likely to influence the jury in its consideration of defendant’s claim that he possessed drugs for personal use, rather than for sale.
D. Defendant was not prejudiced by the trial court’s exclusion of proffered testimony from defendant’s wife, mother, and friend concerning defendant’s drug use
The defense wished to corroborate defendant’s statements to the police and at trial that he smoked cocaine and methamphetamine combined with marijuana, and thus help to substantiate his claim that the cocaine and methamphetamine found in his possession was intended for personal use, not for sale. The defense offered the testimony of defendant’s wife who, in proceedings outside the jury’s presence, said she saw defendant smoking something that smelled stronger than marijuana, saw baggies with unidentified “stuff that was left in there, ” and heard defendant admit that he smoked cocaine and methamphetamine in marijuana. The court excluded the testimony as speculation and hearsay. The court ruled that defendant’s admission to drug use was hearsay, and the wife’s observations were too uncertain and speculative to show what defendant smoked.
The court did not abuse its discretion in excluding the wife’s observations. On cross-examination, defendant’s wife admitted that she did not see what defendant put into the material he smoked; she noticed only that the smell “wasn’t a marijuana smell. It was a stronger odor.” The court asked the wife if she knew if “that stronger odor was either cocaine or methamphetamine, ” and she said “no.” The court did not abuse its discretion in excluding this testimony, which was vague, speculative, and likely to confuse the issues. (Evid. Code, § 352.) As for the wife’s testimony that defendant admitted his drug use to her, the court properly determined the statement to be hearsay. (Evid. Code, § 1200.) Defendant argues that the statement was admissible as a prior consistent statement. (Evid. Code, § 1236.) The prosecution did suggest that defendant fabricated his claim that he used cocaine, methamphetamine, and marijuana in combination, and thus his prior statement to his wife consistent with that claimed drug use was arguably admissible as a prior consistent statement. We conclude, however, that exclusion of the testimony was harmless. A wife’s corroboration is weak evidence in a criminal prosecution. Even if the jury credited the testimony and was convinced that defendant consumed cocaine and methamphetamine, it would not outweigh the powerful evidence presented here that the particular drugs seized from defendant—valued at about $400, packaged in 29 separate baggies and concealed in his shoe—were not intended solely for personal use but were drugs possessed for sale.
Defendant’s mother was permitted to testify, but one portion of her testimony was excluded, and defendant contests that ruling on appeal. Defendant’s mother owned the car in which defendant was arrested, and she reclaimed it from police storage. She said she found a lot of cut open cigars in the car when she reclaimed it. The testimony was used to bolster defendant’s testimony that he liked to combine cocaine and methamphetamine with marijuana, pack the mixture into a hollowed-out cigar, and smoke it. Defendant’s mother also testified that she also found “small plastic baggies with residue in them.” The court struck the testimony about the baggies because it was inconsistent with defense counsel’s proffer of evidence, in which counsel represented that the mother would testify that the only thing she found in the car were cigars. The court also apparently accepted the prosecutor’s argument that the mother’s vague testimony about baggies with unspecified “residue” called for speculation by the jury as to the nature of the residue and was more prejudicial than probative. (Evid. Code, § 352.) The court did not abuse its discretion in excluding the evidence. Also, the exclusion was not prejudicial. At most, the evidence could have been used by the defense to suggest that defendant was a drug user who had consumed drugs and left baggies with only residue remaining. But, as noted above, defendant’s possible status as a drug user does not preclude status as a drug dealer, and the particular facts surrounding his possession here provided strong evidence that the drugs seized from defendant were not intended solely for personal use but were drugs possessed for sale.
Finally, we reach defendant’s claim that the trial court wrongly precluded his friend from testifying that he and defendant smoked cocaine, methamphetamine, and marijuana mixed together. The friend, Andre Milton, was prevented from testifying because he came forward late in the trial, after he had sat in the courtroom during the hearing at which defendant’s wife related defendant’s hearsay statement about using the three drugs mixed together. The court had excluded from the courtroom witnesses not under examination so that those witnesses could not hear, and possibly be influenced by, the testimony of other witnesses. (Evid. Code, § 777, subd. (a).) The court had seen Milton sitting in the courtroom during the proffered testimony of defendant’s wife, and specifically asked Milton if he was testifying as a witness later in the case. Milton said no, as did defense counsel, and Milton remained in the court room. The trial court found that Milton, having heard evidence on the exact issue he proposed to testify about, was effectively a “tainted witness.”
Defendant concedes that Milton violated the court’s witness exclusion order, but that the witness nevertheless should have been permitted to testify because the defense was not at fault for the violation and, moreover, the evidence was so fundamental to the defense that its exclusion under any circumstances offended defendant’s right to due process. Defendant overstates the significance of Milton’s proffered testimony. Milton offered to testify that he and defendant occasionally smoked cocaine, methamphetamine, and marijuana mixed together. Evidence that defendant was a drug user was certainly relevant to his claim of possession for personal use but it did not constitute exculpatory evidence that could overcome the powerful evidence that the particular drugs found on defendant’s person were possessed for sale. To recap, defendant had 29 individually wrapped bags of drugs; the drugs were concealed in his shoe; defendant (an Antioch resident) had been seen loitering at a known drug dealing corner in Richmond over 20 times prior to his arrest; defendant claimed no source of income other than that of a part-time landscaper but was carrying drugs with an estimated value of $400; and defendant could provide almost no information on the person from whom he said he bought drugs on a regular basis when cross-examined on the matter at trial. On this state of the evidence, any error in excluding Milton’s testimony was harmless.
III. DISPOSITION
The judgment is affirmed.
We concur:Ruvolo, P. J., Rivera, J.